Eight years ago, a former gang member from Chicago named Jose Padilla was arrested at O’Hare International Airport and held at a military prison as an enemy combatant under suspicions that he had had contact with al-Qaida and was plotting to use a “dirty bomb.” The Bush administration maintained that Padilla’s status precluded him from rights including habeas corpus, a trial and due process — despite the fact that he was a U.S. citizen.
But while the term “enemy combatant” may seem to have been begotten by government machismo in reaction to the 9/11 terrorist attacks, the label actually goes all the way back to World War II. In recent years, the government has simply revised it.
Charles E. Tucker Jr., executive director of the International Human Rights Institute at DePaul University, said the term was first attributed to Nazi saboteurs.
In the 1942 case Ex parte Quirin, the U.S. Supreme Court upheld the constitutionality of trying eight German infiltrators in military commissions as “unlawful combatants”:
“By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.”
In the case of the Nazi saboteurs, they had shed their uniforms to surreptitiously infiltrate and threaten U.S. targets, making them unlawful combatants and thus subject to a military trial.
In 2006, the Military Commissions Act defined unlawful enemy combatants in a similar manner, primarily in relation to the lawful combatant.
“The term ‘lawful enemy combatant’ means a person who is — a member of the regular forces of a State party engaged in hostilities against the United States; a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.”
“The term ‘unlawful enemy combatant’ means — a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).”
For a timeline of the history of the term “enemy combatant” in the United States, click here.
