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The Necessity of a Federal Law for the Prosecution of Foreign Combatants

The trend of warfare in the last century speaks to future conflicts continuing to be less traditional and involving questions that are perhaps not adequately addressed by the Geneva Conventions and the laws of war. Two such questions, how to detain non-state fighters and how to prosecute them, are already being grappled with in the context of the Global War on Terror. To properly deal with the questions that this new conflict presents, it is essential that the United States develop adequate legislation to detail detention and prosecution procedures for a class of enemy that will not likely disappear but adapt and transform with the times.

In 2002, in a memo to the Council on Foreign Relations by William J. Haynes II, the then General Counsel for the Department of Defense, defined the war on terror prisoners as “unlawful enemy combatants.” This definition was very broad and loosely defined unlawful enemy combatants as someone who does not fall under the definition of a POW in Article 4 of the Third Geneva Convention. In 2006, the Military Commissions Act clarified the term as: “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).” In 2009, Attorney General Eric Holder announced the end of the “unlawful enemy combatant” moniker and the subsequent revision to the Military Commissions Act recycled the definition of an unlawful enemy combatant for the new term “unprivileged enemy belligerent.”

However, while the government polished its name for the enemy, little work was done on formalizing how we would handle them. Most notably, there were no criteria announced for determining whether the proper forum for trying them was a civil court or a military court. To date, few steps have been made to move beyond the definition phase and into the operational phase of trying our prisoners. In 2010, John McCain and Joe Lieberman introduced the Enemy Belligerent Interrogation, Detention, and Prosecution Act. Despite the title, however, little attention was actually given to detention and prosecution procedures beyond prohibiting the use of Department of Justice funds for prosecutions in civil courts. Two years later, in the National Defense Authorization Act of 2012, §1029 gave a brief reference to proper procedures for making a determination on whether a prisoner should have a civil or military trial. However, there is no substance in this beyond requiring that the Attorney General confer with the Director of National Intelligence and the Secretary of Defense before filing charges in federal court.

The cases that do make it to federal court like those against Abu Hamza Al Masri and Zacarias Moussaoui have only dealt with suspects captured in this country or extradited from abroad. Likewise, cases like Hamdi v. Rumsfeld speak to our powers against American citizens but still fail to address foreign detainees that the government does not know what to do with. In light of the Obama administration’s decision to resume trials against Guantanamo detainees through military commissions, important questions like who, besides al Qaeda and its affiliates, we consider to fall outside of the Geneva Convention, how future prisoners will be detained, where they will be detained and what and who will determine the terms of their detention need to be answered.

Although the number of detainees in the war on terror is off its Bush Era high, it is important to consider that starting in the 1960’s, there has been a marked shift to atypical warfare. If this is to be the foreseeable trend, it is essential that the United States, as the main prosecutor of the new global war, have specific legislation addressing these problems rather than dealing with them on an ad hoc basis. In a Congressional report from May of 2012, the differences between civil and military trials can be easily seen. It is striking how well military tribunals seem to be suited for the trying of terror suspects until it is recognized

that the system has been structured to handle these cases. This fact itself is the most worrisome because it speaks volumes that rather than further refining a legal system which has already heard 400 terrorism cases in the last eleven years, we choose to invent a new system to hear the truly tough cases.


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