Constitutional rights of unlawful enemy combatants

According to the Court, the Constitution prevents the government from barring detainees from rigorous habeas review and instead substituting military fact-finding followed only by a limited right of review in the U. Court of Appeals for the District of Columbia Circuit. Notably, the Supreme Court did not decide which specific habeas review procedures are required by the Constitution, but instead sent the cases back to the federal district court to litigate that and related issues. The four dissenting justices would have upheld the constitutionality of the MCA's withdrawal of habeas jurisdiction.

Constitutional rights of unlawful enemy combatants

So while the former terms are well understood and clear under international law, the term "unlawful combatant" is not.

Donate Button The Rights of Enemy Combatants From Washington Lawyer, November By Kerrita McClaughlyn Has the war on terror become a permanent fixture of the American political landscape, as the war on drugs, the war on poverty, and the war on crime?
Search form DictionaryAcronymsIdiomsWikipedia. Enemy Combatant Captured fighter in a war who is not entitled to prisoner of war status because he or she does not meet the definition of a lawful combatant as established by the geneva convention; a saboteur.
BRIA 21 1 b Detaining U.S. Citizens as Enemy Combatants - Constitutional Rights Foundation Signed into law on October 17,the MCA contains sweeping provisions that serve to shelter the Bush Administration from the legal consequences of their actions, while stripping away the fundamental rights of those held in U.

As a compromise, the Russian delegate, F. Similar wording has been incorporated into many subsequent treaties that cover extensions to humanitarian law.

A lawful combatant is a person who commits belligerent acts, and, when captured, is treated as a POW.

Constitutional rights of unlawful enemy combatants

Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

Members of other militias and members of other volunteer corps, including those of organized resistance movementsbelonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupiedprovided Constitutional rights of unlawful enemy combatants such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions: Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondentssupply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

Members of crews [of civil ships and aircraft], who do not benefit by more favourable treatment under any other provisions of international law.

Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.


The following shall likewise be treated as prisoners of war under the present Convention: Persons belonging, or having belonged, to the armed forces of the occupied country Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

These terms thus divide combatants in a war zone into two classes: The critical distinction is that a "lawful combatant" defined above cannot be held personally responsible for violations of civilian laws that are permissible under the laws and customs of war; and if captured, a lawful combatant must be treated as a prisoner of war by the enemy under the conditions laid down in the Third Geneva Convention.

If there is any doubt about whether a detained alleged combatant is a "lawful combatant" then the combatant must be held as a prisoner of war until his or her status has been determined by "a competent tribunal".

Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.

If the individual fulfills the criteria as a protected person, they are entitled to all the protections mentioned in GCIV. It should be emphasised that, in a war zone, a national of a neutral state, with normal diplomatic representation, is not a protected person under GCIV.

If a combatant does not qualify as a POW, then, if they qualify as a protected person, they receive all the rights which a non-combatant civilian receives under GCIV, but the party to the conflict may invoke Articles of GCIV to curtail those rights.

Related Information

The relevant Articles are 5 and Where in occupied territory an individual protected person is detained as a spy or saboteuror as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

Aliens in the territory of a party to the conflict The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary. In this case, the "unlawful combatant" does not have rights under the present Convention as granting them those rights would be prejudicial to the security of the concerned state.

They do, however, retain the right " For those nations that have ratified Protocol I of the Geneva Conventions, are also bound by Article In occupied territory, any such person, unless he is held as a spy, shall also be entitled, notwithstanding Article 5 of the Fourth Convention, to his rights of communication under that Convention.

Article 3 1 Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.An unlawful combatant, illegal combatant or unprivileged combatant/belligerent is a person who directly engages in armed conflict in violation of the laws of unlawful combatant may be detained or prosecuted under the domestic law of the detaining state for such action, subject to international treaties on justice and human rights.

This designation, which is also referred to as unlawful combatants, gives detainees fewer rights than those conferred on prisoners of war by the Third Geneva Convention ().

Military Commissions Act of - Wikipedia

Gitmo Inmates' Constitutional 'Rights' that the military commissions does not have jurisdiction over their clients because those clients were determined to be unlawful enemy combatants by the.

Now before the Supreme Court, the government maintained its position that the MCA's withdrawal of jurisdiction over the detainees' habeas suits was constitutional because, (1) noncitizens held as enemy combatants outside the sovereign territory of the U.S. lack individual rights under the Constitution, including the right to the writ of habeas.

Constitutional rights of unlawful enemy combatants

The act also states: “No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a . FAQs: The Military Commisions Act. It leaves in the hands of the President or Defense Secretary a nearly unrestricted authority to declare people “unlawful enemy combatants.” The Center for Constitutional Rights is engaged in legal challenges to the Military Commissions Act.

Unlawful combatant - Wikipedia