In her article "War v. Justice: Terrorism Cases, Enemy Combatants, and Political Justice in U.S. Courts," Christiane Wilke (2005) discussed at length the Bush administration's attempts to categorize captured accused terrorists as "enemy combatants," or "illegal enemy combatants," descriptions that place them in a fog zone where they do not qualify as soldiers, protected under the Geneva Convention, nor as criminals, subject to U.S. legal prosecution. Detaining these individuals at Guantanamo Bay was advantageous, in that the United States holds jurisdiction there, but not sovereignty, hence prisoners were in a virtual dead zone, legally, held without charge nor hope of a fair and speedy trial. This was deemed not illegal because they were not within the territorial boundaries of the United States (Wilke, 2005).
The administration aggressively pushed its "enemy combatant" definition when confronted by the courts, after it was determined that some US citizens were being detained and held under suspicion of sympathizing with terrorists or might be potential combatants (Wilke, 2005). The Supreme Court intervened in favor of these prisoners, upholding their rights under the Sixth Amendment (Wilke, 2005). Bush then proceeded to circumvent this move by establishing "military tribunals," where detainees would be prosecuted outside the jurisdiction of the courts (Wilke, 2005). These tribunals were questionable as legal venues, as the prosecutors and commissioners were "ultimately answerable to the Secretary of Defense and the President..."(Wilke, 2005, p.656), meaning that anyone found guilty would have no recourse. In addition, these individuals were not to be shown the evidence against them--as often, there was none--simply a conviction on the part of the executive, or the military, that he or she might at some time be dangerous if they were to be released (Wilke, 2005).
In essence, individuals detained as enemy combatants by the president, could be held indefinitely in a prison that is semantically "outside" the United States, therefore not subject to US law, and tried in a military court wherein they are not allowed to know the evidence against them (if any). Furthermore, they cannot ask that their designation or sentence (if such be the case) be reviewed by US courts--once declared, or sentenced, they have zero recourse.
The Supreme Court objected to this preemption of their jurisdictional authority, arguing, in Rasul vs Bush, that this wholesale approach to detentions and prosecutions without review or recourse amounted to disenfranchising the Court of its power as the third body of the government, whose role is to provide a check to the executive branch (Wilke, 2005). When it comes to US citizens (other than the military), the Court posited, it is not necessary to distinguish a criminal (as defined by the legal system) from an "enemy combatant," as "there is no reason to think Congress might [perceive]any need to augment Executive power to deal with dangerous citizens within the United States, given the well-stocked statutory arsenal of defined criminal offenses covering the gamut of actions that a citizen sympathetic to terrorists might commit "(Souter, as cited by Wilkes, 2005, p. 660) (insertion mine).
Fast forward to 2011- the National defense Authorization Act of 2012. Even after the Supreme Court has issued a clear statement that the Congress and Executive branches do not have the legal authority to classify American citizens as "illegal enemy combatants," hence not subject to US law but now to be unwitting victims of Presidential whim, the House of Representatives has written a law doing JUST THAT. NDAA 2012 states that the President can, at his discretion, name any individual, citizen or not, as an illegal enemy combatant, whether this person has done anything or not to warrant such a description, that the designation is irrevocable and without review, and that this person can be held indefinitely without hope of a trial or eventual freedom if the executive deems that he or she "might" at some time potentially be dangerous to American citizens.
Clearly, we have regressed and are once more confronted with having to protect our rights and freedom. It is not enough that the Supreme Court has declared " We have long since made it clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens ..." ( Wilke, 2005, p. 661). The Congress and the president are attempting, again, to convert our democracy into an authoritarian regime wherein they hold ultimate power. It will be interesting to see if the Supreme Court acts to protect us , or if they will abide by this usurpation of power and assist in the dismantling of our democracy.
Source: Wilke, C. (2005) War v. Justice: Terrorism cases, Enemy Combatants, and Political Justice in U.S. Courts. Politics and Society. (33). pp.637-669. doi:10.1177/0032329205280926
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