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In a recent Senate session, they were discussing the release of all Guantanamo Bay detainees. Senator Lindsey Graham claimed that since the people held there were enemy combatants, they did not have the same rights as ordinary criminal enterprises, and that the US government can legally hold them without trial for as long as the government deems necessary (source: https://www.youtube.com/watch?v=OGbwzX4Xlqg)

Is Senator Graham correct in asserting that those deemed "enemy combatants" do not have the right to a speedy trial?

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Enemy combatants do not have a right to a speedy trial and do not have the same rights as criminal defendants, but Senator Graham is incorrect in asserting that they may be held without trial "for as long as the government deems necessary." Instead, they may only be held so long as the "enemy" with whom the detainee is affiliated is still an "enemy" in the context of a Congressionally authorized use of military force.

Detention of an enemy combatant is a close cousin of detention of a prisoner of war. It is a basis for detention based upon the detainee's status, for which the military only has to justify the military detention by showing that the detainee is a combatant member of a group which is an "enemy", such as a soldier, covert operative, or terrorist for that group.

The term "enemy" is a term of art which means a country or non-military armed group with which Congress has declared war, or has authorized the use of military force against.

For example, since the U.S. does not have Congressionally declared wars or authorizations for use of military force in place at this time against Russia and China, members of the militaries of Russia and China are not "enemy combatants" even though a large share of the U.S. military budget is devoted to preparing for war with these countries.

Detention of enemy combatants is authorized to continue until the U.S. is no longer at war with, or no longer authorizes the use of military force against, the combatant force that the detainee is a part of (i.e. "for the duration"). This has happened in a recent case where the U.S. made a peace treaty with a particular group connected with the Afghan War discussed below.

If the Authorization For Use of Military Force (2001) were repealed and not replaced by Congress today, all enemy combatant detainees in the U.S. would have a legal right to be released except the five that are currently facing separate quasi-criminal charges for specific wrongful conduct before a military commission, discussed below, rather than merely being combatants affiliated with a U.S. military enemy.

The main due process protection is the right to bring a habeas corpus petition challenging your classification as an enemy combatant.

In addition, the military evaluates whether the detention of an enemy combatant is lawful because the person is an enemy combatant, and whether this detention continues to be lawful in a Combatant Status Review Tribunal, rather than in a quasi-criminal court-like military commission.

Since it is not a criminal offense/charge (instead, it is a military tactic), it is not subject to the speedy trial act requirement.

As the Lawfare blog explains:

On Oct. 19, Judge Amit Mehta of the U.S. District Court for the District of Columbia did something we have not seen in many a year: He granted a Guantanamo detainee’s petition for a writ of habeas corpus, ordering the man’s release.

The man in question is Asadullah Haroon Gul (aka Haroon al-Afghani), an Afghan citizen who was captured alongside six other men in an operation by Afghan government forces in early 2007. All the men, it appears, were members of the armed group known as Hezb-e-Islami Gulbuddin (HIG) commanded by former Afghan Prime Minister Gulbuddin Hekmatyar. Though not formally part of the Taliban, Hekmatyar’s political movement and its armed expression, HIG, were aligned theologically and politically with the Taliban. And after the fall of the Taliban, HIG became one of the armed groups fighting against the new Afghan government, U.S. forces and other allied forces. In short, HIG for many years was a paradigm example of an “associated force” engaged in hostilities against the United States in connection with the larger conflict with al-Qaeda and the Taliban. Indeed, in 2011, a U.S. Court of Appeals for the D.C. Circuit opinion authored by now-Attorney General Merrick Garland expressly affirmed as much in Khan v. Obama.

But here’s the thing about military detention authority: The scope of that authority will grow or shrink in accordance with the scope of the underlying armed conflict on which the claim of military detention authority is based. And thus it mattered a great deal when, in fall 2016, the then-government of Afghanistan reached a peace agreement with HIG. Thus, even without the eventual U.S. decision to withdraw from Afghanistan and end the fight against the Taliban too, the legal foundation for military detention in cases predicated solely on membership in HIG appeared to be going or already gone by late 2016. . . .

In 2018, the Justice Department responded by abandoning its claim of authority to detain based on HIG membership alone. It argued that Gul still could be held, however, based on the distinct claim that Gul separately had been involved with al-Qaeda itself.

Gul denies that argument on factual grounds, and for a time that was the central issue in the case.

Then, with the recent full withdrawal of the United States from Afghanistan, Gul appears to have expanded his argument to include a much broader claim about the expiration of the legal grounds for detention. That claim, if accepted by the court, could have sweeping implications for other Guantanamo detainees.

Courts have generally declined to enforce speedy trial protections for people detained as enemy combatants who are then transferred to civilian criminal courts such as Ahmed Khalfan Ghailani (who initially faced military commission charges discussed below) and Jose Padilla, the only U.S. citizen detained in the United States for conduct in the United States as an enemy combatant.

Padilla was subsequently transferred from military custody to civilian federal criminal justice system pre-trial detention and tried and convicted there of a federal crime, while he was appealing his detention as an enemy combatant to the U.S. Supreme Court. This made the case moot, but left the U.S. Circuit Court of Appeals precedents made earlier in his case, which had upheld his detention as an enemy combatant in these circumstances, on the books as a binding precedent that the U.S. government could invoke in a future case.

The leading modern case on the topic is Hamdi v. Rumsfield, 542 U.S. 507 (2004) which addresses the authority to detain an enemy combatant, and the scope of the habeas corpus remedy in the case of a U.S. citizen who is alleged to be an enemy combatant. The official syllabus summarizes the case as follows:

After Congress passed a resolution–the Authorization for Use of Military Force (AUMF)–empowering the President to “use all necessary and appropriate force” against “nations, organizations, or persons” that he determines “planned, authorized, committed, or aided” in the September 11, 2001, al Qaeda terrorist attacks, the President ordered the Armed Forces to Afghanistan to subdue al Qaeda and quell the supporting Taliban regime.

Petitioner Hamdi, an American citizen whom the Government has classified as an “enemy combatant” for allegedly taking up arms with the Taliban during the conflict, was captured in Afghanistan and presently is detained at a naval brig in Charleston, S. C. Hamdi’s father filed this habeas petition on his behalf under 28 U.S.C. § 2241 alleging, among other things, that the Government holds his son in violation of the Fifth and Fourteenth Amendments. Although the petition did not elaborate on the factual circumstances of Hamdi’s capture and detention, his father has asserted in other documents in the record that Hamdi went to Afghanistan to do “relief work” less than two months before September 11 and could not have received military training.

The Government attached to its response to the petition a declaration from Michael Mobbs (Mobbs Declaration), a Defense Department official. The Mobbs Declaration alleges various details regarding Hamdi’s trip to Afghanistan, his affiliation there with a Taliban unit during a time when the Taliban was battling U. S allies, and his subsequent surrender of an assault rifle.

The District Court found that the Mobbs Declaration, standing alone, did not support Hamdi’s detention and ordered the Government to turn over numerous materials for in camera review.

The Fourth Circuit reversed, stressing that, because it was undisputed that Hamdi was captured in an active combat zone, no factual inquiry or evidentiary hearing allowing Hamdi to be heard or to rebut the Government’s assertions was necessary or proper.

Concluding that the factual averments in the Mobbs Declaration, if accurate, provided a sufficient basis upon which to conclude that the President had constitutionally detained Hamdi, the court ordered the habeas petition dismissed. The appeals court held that, assuming that express congressional authorization of the detention was required by 18 U.S.C. § 4001(a)–which provides that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress”– the AUMF’s “necessary and appropriate force” language provided the authorization for Hamdi’s detention. It also concluded that Hamdi is entitled only to a limited judicial inquiry into his detention’s legality under the war powers of the political branches, and not to a searching review of the factual determinations underlying his seizure.

Held: The judgment is vacated, and the case is remanded.

Justice O’Connor, joined by The Chief Justice, Justice Kennedy, and Justice Breyer, concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker.

Justice Souter, joined by Justice Ginsburg, concluded that Hamdi’s detention is unauthorized, but joined with the plurality to conclude that on remand Hamdi should have a meaningful opportunity to offer evidence that he is not an enemy combatant.

Military Commissions Compared

A Military Commission trial is different from detention as an enemy combatant.

On November 13, 2001, President Bush issued a Military Order governing the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.” The Military Order effectively established the novel military commissions at Guantanamo Bay, which began in 2004 with charges against four Guantanamo detainees.

In 2006, the Supreme Court struck down the military commissions (in Hamdan v. Rumsfeld), determining that the commissions violated both the Uniform Code of Military Justice and the 1949 Geneva Conventions. In response, and in order to permit the commissions to go forward, Congress passed the 2006 Military Commissions Act (MCA). Congress significantly amended the MCA in 2009. In 2019, exercising authority granted to him under the MCA, the Secretary of Defense published an updated Manual for Military Commissions, which sets forth the current procedures that govern the commissions.

The enemy combatant detainees who face military commission trials are a small subset of the total number of detainees:

Of the 779 men detained at Guantanamo at some point since the prison opened on January 11, 2002, thirty two total have been charged in the military commissions. Charges were dismissed in 12 of those cases, and stayed in another. The U.S. government has procured eight convictions total, six of which were achieved through plea agreements with the defendants. U.S. federal courts have overturned several of the eight convictions in whole or in part.

There are five cases are currently ongoing in the commissions—and another two pending appeal—including United States v. Khalid Sheikh Mohammed, et al.—the prosecution of the detainees alleged to be most responsible for the September 11, 2001 attacks. None of those five cases has yet gone to trial.

Only one military commission case to date produced a conviction following a military commission trial, and that conviction was vacated on appeal in Hamdan v. United States (D.C. Cir. 2012).

Another military commission defendant had his case transferred to a civilian criminal court where he was convicted following a civilian criminal trial (Ahmed Khalfan Ghailani) where he was convicted and is currently serving a life sentence in a federal prison. He is the only person originally charged by a military commission who is still incarcerated by the U.S., and again, in that case, outside the military commission process.

Two of the six military commission guilty pleas were subsequently vacated in the cases of David Hicks, who was then deported to Australia, and Noor Muhammed, who was deported to Sudan.

Five military commission cases remain outstanding.

Footnote: Enemy Non-Combatants

The parallel case law for civilians who are not combatant is Korematsu v. United States, 323 US 214 (1944), which while deeply criticized, has never been overruled as applied to non-citizens.

This case held that the U.S. may detain a non-combatant civilian, even as U.S. citizen, who has ancestry from an "enemy" (with "enemy" defined in the same ways as in connection with "enemy combatant") in an interment camp for the duration of a military conflict with that "enemy."

In that particular case, the "enemy" was the Japanese Empire upon which Congress declared war after the December 7, 1941 bombing of Pearl Harbor, and the non-combatant civilians who were interred were ancestrally Japanese or families of people who were ancestrally Japanese.

While this precedent has never been formally overruled as as applied to non-citizens, it has received heavy criticism in legal scholarship and is no longer good law as applied to U.S. citizen who were merely born citizens of an "enemy" or shared the ethnicity of an "enemy".

The portion of the Korematsu holding that upheld this detention in the case of U.S. citizens was abrogated by a majority opinion of conservative justices in U.S. Supreme Court in the case of Trump v. Hawaii, 138 S.Ct. 2392, 2423 (2018), which stated (in a case upholding the legality of Trump's Muslim ban as modified from its original version):

Finally, the dissent invokes Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944). Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission. The entry suspension is an act that is well within executive authority and could have been taken by any other President—the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation.

The dissent's reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.” 323 U.S., at 248, 65 S.Ct. 193 (Jackson, J., dissenting).

But, it might very well continue to be good law as applied to non-citizens in the U.S. who were nationals of an "enemy".

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    "Instead, they may only be held so long as the "enemy" with whom the detainee is affiliated is still an "enemy" in the context of a Congressionally authorized use of military force": one way of looking at this is that when the enemy ceases to be an enemy, the detainee ceases to be an enemy combatant, so may no longer be held as such.
    – phoog
    Dec 13, 2021 at 21:42
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    I think the Japanese internment is a very bad example, because they also interred US citizens with Japanese ethnicity, Fred Korematsu was a US citizen born inside the US, same for George Takei for example. And I cannot find any information that either had Imperaial Japan nationality.
    – Dr. Snoopy
    Dec 14, 2021 at 13:03
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    @Vikki While it is technically dicta, for all practical purposes, such an abrogation by the U.S. Supreme Court has the force of law and would be followed by all lower courts.
    – ohwilleke
    Dec 15, 2021 at 1:33
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    Didn't German soldiers labor for free as prisoners in Texas and other states up to two years after the end of the war?
    – Kheldar
    Dec 15, 2021 at 11:41
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    @MichaelHardy When I am talking about "practically" I am intending to mean in the way that the relevant law gets applied to the facts.
    – ohwilleke
    Dec 16, 2021 at 0:59
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(in the act linked in the question)

Sec. 948b. Military commissions generally

(d) Inapplicability of Certain Provisions.-- (d) (1) The following provisions of this title shall not apply to trial by military commission under this chapter:

A) Section 810 (article 10 of the Uniform Code of Military Justice), relating to speedy trial, including any rule of courts-martial relating to speedy trial.

(B) Sections 831(a), (b), and (d) (articles 31(a), (b), and (d) of the Uniform Code of Military Justice), relating to compulsory self-incrimination.

(C) Section 832 (article 32 of the Uniform Code of Military Justice), relating to pretrial investigation.

((d) 2) Other provisions of chapter 47 of this title shall apply to trial by military commission under this chapter only to the extent provided by the terms of such provisions or by this chapter.

(e) Geneva Conventions Not Establishing Private Right of Action.--
No alien unprivileged enemy belligerent subject to trial by military commission under this chapter may invoke the Geneva Conventions as a basis for a private right of action.

Note: it has been questioned whether some of these rights can be validly dispensed with, or if the US Federal Constitution requires them to be applied in any US court or proceeding under the authority of the US government. But as far as I know, no court has so held in the case of military commission authorized under this act.

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    Military commissions apply to the small subset of enemy combatant detainees who are charged with specific quasi-criminal charges, not to enemy combatants in general,
    – ohwilleke
    Dec 13, 2021 at 21:03
  • @ohwilleke Thank you, that is interesting. Dec 13, 2021 at 21:11
  • I saw those references to subsection A, but couldn't resolve where article 10 of the Uniform Code of Military Justice became relevant, and TBH I didn't look!
    – Rick
    Dec 13, 2021 at 21:20
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Only a partial answer, which may hopefully assist others:

The Federal Speedy Trail provisions may be found at 18 U.S. Code CHAPTER 208 but according to this source

...the Speedy Trial Act is specifically waived in the Commission (sic) Act...

But I cannot find (hence my partial answer) any direct reference in the Military Commissions Act to corroborate it.

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You tag the question "constitutional law" but that may not be the only law relevant to the case.

Historically, governments or their officers have been sentenced for actions that were formally legal under the contemporary laws. The legal reasoning posits that despite the nominal legality they violated essential human rights. This was true for the crimes against humanity found in the Nuremberg Trials.

A more recent example concerns the legality of killing GDR citizens trying to escape their country. I'll quote the Bundesgerichtshof here:

Ein Rechtfertigungsgrund, der einer Durchsetzung des Verbots, die DDR zu verlassen, Vorrang vor dem Lebensrecht von Menschen gab, indem er die vorsätzliche Tötung unbewaffneter Flüchtlinge gestattete, ist wegen offensichtlichen, unerträglichen Verstoßes gegen elementare Gebote der Gerechtigkeit und gegen völkerrechtlich geschützte Menschenrechte unwirksam.

My attempt of a translation:

A justification [of the killings at the Wall] that gave priority to enforcing the prohibition to leave the country over peoples' right to live by permitting the intentional killing of unarmed fugitives is ineffective due to its obvious, intolerable violation of essential imperatives of justice and of human rights protected by international law."

To paraphrase:

  • Existing law prohibited citizens from leaving the country;
  • lethal force was officially and expressly allowed and commanded to enforce the prohibition;
  • the result is an obvious and fundamental violation of human rights.

Legal conclusion: The shooting soldier committed a crime, even though he did not violate any written law. The court also established the existence of human rights independently and separately from any codified international law. If we look behind the facade of fancy words, it essentially said: "You must have known it was wrong." In my opinion this observation applies directly to indefinite incarceration without trial. This argument of an "obvious, intolerable injustice" that is not based on any written law is relevant here because the U.S. is notoriously dismissive of international law. This argument also summarily dismisses the smoke screen of distractions like "soldier vs. combatant" and "U.S. territory vs. Cuban territory", directly addressing the core of the matter.

It is noteworthy that most of such trials are preceded by a revolution-like regime change or a foreign occupation: An existing regime typically does not put itself to trial, both out of self-interest and missing insight in its culpability.

As a German I feel the urge to remark that regime changes are rare but not unheard of, and notoriously hard to foresee.

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I'm not a lawyer, but Boumediene v. Bush seems applicable, here:

https://scholar.google.com/scholar_case?case=913322981351483444&q=bush+v.+boumediene&hl=en&as_sdt=2006&as_vis=1

I believe it succeeds and refines Hamdi v Rumsfeld, and disallows indefinite detention of enemy combatants.

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