Principles of Professional WritingProfessional writing aims to.docx

Principles of Professional Writing
Professional writing aims to be clear, concise, and invisible.
Clear: No matter the field, professionals write to convey
information to specific audiences. If that information is not
clear, the audience will become confused and, in some cases,
annoyed. To convey information clearly, a writer must first
consider her audience, for each audience will require a different
starting context; for instance, when explaining a concept from
your major to your parents, you will include different
information than if explaining that same concept to another
student within your major. Your parents may require you to
define some technical terms, whereas the student in your major
can be trusted to already know them. But clarity is also a
primary concern at the sentence level. In this module, we’ll be
learning several strategies for ensuring our sentences remains
clear.
Concise: Subordinates exist in any organization to maximize the
efficiency of their supervisors. Meanwhile, supervisors are
most efficient when they communicate their needs to their
subordinates with a minimum of directions. For these reasons,
concision is a primary concern of all workplace writing.
Concise writing conveys complex ideas in simple, easy-to-
understand language, thereby ensuring the efficient transference
of knowledge. Moreover, concision is considered in
professional contexts to be a measure of intellectual ability; the
writer who conveys a complex subject in 500 words appears
smarter than the writer who conveys the same subject in 1000
words.
Invisible: The aim of some writing, poetry for instance, is in
part to draw attention to the language itself. However, in
professional situations, the single aim of all writing is to
function as a window onto the content the writer seeks to
explain. Imagine for a moment that writing is a window

through which the reader peers; we want the reader to see what
is outside, not the dirty glass before him. To this end, 1) we
avoid fancy language when simple will do, 2) we incorporate
the jargon of our field when the audience can be trusted to know
that jargon, and if the audience cannot, we include parenthetical
definitions, and 3) we do not think of our workplace writing as
a vehicle for self-expression.
Questions for Week 7
A. Use the lecture notes, your textbook, or other credible
sources to answer the following questions. Do not copy and do
not “cut and paste.” You must indicate the source of every
answer to each question. Each question must have at least a
paragraph answer !
1. What is a military commission? Under what authority is a
military commission established?
2. Explain the writ of habeas corpus. How does it apply to
terrorism held in American custody today?
3. Distinguish between a lawful combatant and an unprivileged
belligerent. What rights do each have after capture under
international law?
4. Discuss the Detainee Treatment Act (2005). Why was the law
enacted? What purpose does it serve? How does it operate?
5. What is combat immunity? Who possesses combat immunity?
6. Discuss Ex Parte Merryman (1861) and Ex Parte Milligan
(1866).
Submit via dropbox
B. Include source for this question and answer must be atleast a
paragraph.
Why did the U.S. Supreme Court disregard the precedent that it
established in Johnson v. Eisentrager (1950) with regard to
persons captured by the United States as part of the GWOT?
Are the reasons convincing to you? Why or why not?

1
Lectures to Accompany Luna and McCormack Chapter 8:
Military Detention and Trial1
By Dr. James Prescott
The GWOT has been characterized by acts of terrorism as well
as armed conflict.
The use of the American armed forces overseas to fight
terrorists and their
supporters has not been regular conflict between the armies of
nation-states. Rather, it
has been a fight between western armed forces and various
categories of civilians, many
of which received military-style training. These civilians have
also used military-grade
weapons and IEDs (Improvised Explosive Devices).
This means that the laws and customs developed to deal with
fighting nation-
states do not apply well to this reality. In the GWOT, the enemy
combatants that our

military is fighting are neither soldiers nor purely civilians.
How to deal with captured terrorists and other enemy
combatants has posed
complex problems for the United States in terms of both
domestic and international
law. Some have been dealt with through the civilian court
system, as we have seen.
But others have been dealt with through military tribunals, as
we will examine in
Chapter 8.
As your authors say, “Beginning in early 2002, individuals
captured in
Afghanistan and elsewhere were taken to the U.S. Naval Base in
Guantanamo Bay,
Cuba, with a few individuals detained at military facilities in
the United States. In the
coming years, several Guantanamo detainees would be deemed
eligible for tiral by
military commissions.”2
“These actions implicated both the international law of war and
federal
constitutional and statutory law.”3

“These and other rules can be quite difficult to apply even in
traditional armed
conflicts, making it unsurprising that the political branches and
the courts have
struggled over the legal complexities raised by the war on
terrorism.”4
“In ordering military detention and trial for alleged terrorists
and their
collaborators, the U.S. government relied upon court decisions
stemming from prior
armed conflicts.”5 As we will see, the federal courts
reinterpreted the rules established
in the period prior to 1951 during the course of the GWOT.
We have looked at civilian interrogation and civilian
prosecution of terrorism
suspects. Chapter 8 examines something different: military
detention of terrorism
suspects and trial of terrorism suspects by military
commissions.
2
A military commission is a military court established for a

particular purpose,
such as determining a status under the laws of war/armed
conflict. Usually, they are set
up outside the U.S. in areas where the civilian courts are not
operating. In the United
States, the UCMJ (Uniform Code of Military Justice) provided
authority to military
commissions to try cases of aiding the enemy and spying, for
example.6
These have rules different from the civilian world, and we have
to study them as
well in order to understand terrorism in the law.
The federal government has the power to detain enemy forces
captured on the
battlefield during military operations. It also has the power to
try those that violate the
international law of war. Such persons have fewer rights than
individuals put through
the civilian criminal justice system.
Legitimate combatants of recognized nation-states are said to
possess combat
immunity, which means that they cannot be tried or prosecuted
for participating in

armed conflict.7 However, legitimate combatants can be
prosecuted for violating the
laws and customs of war through military tribunals or
commissions. “Usually, civilian
non-combatants are not subject to military seizure, detention, or
trial, although civilians
who directly participate in a conflict may forfeit their protected
status.”8
As your authors note, “A month after 9/11, President Bush
issued an order
authorizing military detention of suspected terrorists and their
collaborators, as well as
military trials for those who violated the law of war.”9 This
was the Military Order of
November 13, 2001: Detention, Treatment, and Trial of Certain
Non-Citizens in the
War Against Terrorism.
After the U.S. military invaded Afghanistan in 2001, terrorist
suspects were
apprehended by military forces. These suspects “…were taken
to the U.S. Naval base in
Guantanamo Bay, Cuba, with a few individuals detained at
military facilities in the
United States.”10 Many were tried by military commissions;

others were simply
questioned and indefinitely detained. “These actions implicated
both the international
law of war and federal constitutional and statutory law.”11
“In ordering military detention and trial for alleged terrorists
and their
collaborators, the U.S. government relied upon court decisions
stemming from prior
armed conflicts.”12 The difficulty here has been that federal
courts today have chosen
not to completely abide by these precedents.
So let us examine some of the precedents for applying military
and trial as a
result of armed conflict by the U.S. government between 1861
and 1950. We have two
cases from the Civil War era on this: Ex parte Merryman (1861)
and Ex parte Milligan
(1866).
3
Ex parte means “for one party,” which is a court decision made

for the benefit of
only one of the two parties involved in a legal dispute. It is
typically made in a hearing
in which only one party is present, as when the person filing the
petition is in prison or
other official custody.13
The first case is Ex parte Merryman (1861), a U.S. Circuit
Court of Appeals case.
The case arose because former President Lincoln suspended the
writ of habeas corpus
in an effort to combat secession by Southern states. His strategy
was to use the U.S
military to round up people suspected of working to interfere
with the federal
government’s enforcement of laws.
The writ of habeas corpus is a court order “…directing that a
person held in
custody be brought before the court to determine if he or she is
being lawfully held.”14
This is a very important right under Anglo-American law—the
ability to challenge the
legality of one’s confinement. If you can’t challenge your
confinement, you could

potentially be locked up indefinitely. Article I of the U.S.
Constitution allows Congress
to suspend habeas corpus during times of national emergency.
The president does not
possess this power under the Constitution, however.
Merryman was arrested and confined by the military for
conspiracy to blow up
railway and telegraph lines. The U.S. Circuit Court ruled that
President Lincoln had
exceeded his authority and that only Congress can suspend
habeas corpus. However,
the decision was ignored by the Lincoln administration. In any
event, in 1863, Congress
enacted a law allowing the president to suspend the writ of
habeas corpus.15
The second case from the Civil War era on this was Ex parte
Milligan (1866). In
this case, the U.S. Supreme Court enunciated fundamental
principles regarding the
extent to which civilians apprehended within the United States
outside combat zones
can be detained and tried by military forces. Read pages 444-
446 of your textbook to
study the case in more detail.

In summary, Milligan was a civilian living in Indiana. Milligan
and two others
were involved in a plot to engage in insurrection in Illinois and
to raid a prison camp
holding Confederate prisoners of war. The plan was to violently
attack the U.S.
government in that area. Milligan and his co-conspirators were
caught before the plan
could be completed. They were charged and convicted by a
military commission
established under the order of President Lincoln, not a civilian
court, and sentenced to
death. Milligan appealed to the Supreme Court on a habeas
corpus petition.
The U.S. Supreme Court reversed Milligan’s conviction and
sentence. The Court
ruled that civilians accused of crimes outside a war zone must
be charged and tried by
the regular civilian criminal justice system, not a military court
or commission. The
Court held that neither Congress nor the president had the
authority to establish

4
military commissions to try civilians in areas where the civilian
courts are open and
operating. This is especially true for civilians apprehended
within the United States.16
Two other highly relevant cases that were used as precedent
prior to the 9/11
attacks are the Ex Parte Quirin case from 1942 and the Johnson
v. Eisentrager case from
1950. Both of these cases arose out of World War II.
In 1942, following the declaration of War with Nazi Germany
the previous year,
the Germans sent eight men to the east coast of the United
States in a U-boat. One
group came ashore in New York state on Long Island, and
another group came ashore
in Florida near Jacksonville.
The purpose of their mission was to engage in sabotage against
American war
plants and facilities. All eight spoke good English and had
previously lived in the
United States. “Each man had undergone training in Germany

and had been paid by
German officials.”17 When they landed, they were wearing
Germany military uniforms
and carrying explosives. Soon after landing, they changed into
civilian clothes.
American FBI officials arrested all eight Germans before they
could pull off their
planned sabotage. They were handed over to U.S. military
authorities after questioning.
President Roosevelt considered this attempted sabotage by
enemy combatants wearing
civilian clothing to be serious violations of the laws and
customs of war. Remember that
this was World War II—an actual declared war.
Accordingly, President Roosevelt ordered that the Germans
were to be tried by a
military commission, rather than in civilian courts, “…on the
charges of violating the
law of war, communicating intelligence to the enemy, spying,
and conspiracy to commit
these offenses.”18
“In a petition for habeas corpus, the men argued that the
President lacked

statutory or constitutional authority to try them by military
tribunal.”19
Remember the Civil War precedents of Milligan and
Merryman? The Supreme
Court ruled that civilians accused of crimes outside a war zone
must be charged and
tried by the regular civilian criminal justice system, not a
military court or commission.
The Court held that neither Congress nor the president had the
authority to establish
military commissions to try civilians in areas where the civilian
courts are open and
operating.
Problem for the Germans: in the Quirin case, the Supreme
Court did not agree
that the Milligan precedent applied. First, Milligan was a
civilian. Milligan was not part
of the armed forces of the Confederate States or any other
enemy of the United States.
Thus, the laws of war and a military tribunal should not apply to
him.
5

On the other hand, the Germans were in the German military.
The Supreme Court
recognized that wearing civilian clothing, spying, and attempted
sabotage are all
violations of the laws and customs of war, especially when
conducted by members of a
foreign military during a declared war. The Germans were
recognized enemies of the
United States by virtue of serving in a foreign military. Thus,
trial in civilian courts is
not legitimately open to them.
Congress “…had explicitly provided military tribunals with
jurisdiction in…”20
enforcing the laws and customs of war. “Moreover, an important
incident of war is the
executive’s ability to ‘seize and subject to disciplinary
measures those enemies who in
their attempt to thwart or impede our military effort have
violated the law of war.’”21
Thus, “…the Justices unanimously concluded that the military
commission did
have jurisdiction in this case.”22 The Supreme Court did,
however, distinguish this case

from Milligan. The Supreme Court held that “Over the course of
American military
history, the government had ‘recognized that those who during
time of war pass
surreptitiously from enemy territory into our own, discarding
their uniforms upon
entry, for the commission of hostile acts involving destruction
of life or property, have
the status of unlawful combatants punishable as such by
military commission.’”23
The Supreme Court went to the decide that their decision
“…was so accepted at
home and abroad, as well as by international law experts, as to
be a rule or principle of
the law of war. It did not matter that the alleged wrongdoing did
not occur in a theater
of active military operations. Nor did it matter that one of the
[captured
Germans]…claimed to be an American citizen.”24
American “Citizens who associate themselves with the military
arm of the
enemy government, and with its aid, guidance, and direction
enter this country bent on

hostile acts are enemy belligerents within the mean of the
Hague Convention and the
law of war.”25
The Hague Conventions were held in 1899 and 1907 and
marked the first real
efforts to get nation-states to agree on the laws and customs of
war. They were used
also to justify the Nuremberg Trials in 1945.
Johnson v. Eisentrager (1950) is another U.S. Supreme Court
case arising as a part
of WWII. The case involved German soldiers who continued
fighting allied forces in
China after Germany has surrendered in May 1945 but before
Japan surrendered later
that year. In other worlds, WWII was still going on, but
Germany had surrendered
earlier that year. Japan did not surrender until September.
The Germans were captured in China and tried before a
military commission for
violations of the law of war (mainly continuing to fight after the
valid surrender of their

6
nation-state). They were transferred to a U.S. military prison in
Germany. A habeas
corpus petition was filed in U.S. District Court challenging the
validity of their
confinement in prison. The U.S. District Court dismissed the
petition, but a U.S. Circuit
Court of Appeals reversed, saying that “…the judiciary must
have the authority to
determine the legality of imprisonment for crime.”26 The U.S.
Supreme Court reversed,
saying that the Germans had no right to challenge the legality of
their imprisonment via
habeas corpus.
The most serious charges against the Germans “…involved
breaching the terms
of an act of surrender, a long-established violation of the laws
of war.”27 The Supreme
Court recognized the principle established in Quirin “…that a
military commission is a
lawful tribunal to adjudicate enemy violations of the law of
war.”28
The Supreme Court justified its reversal of the U.S. Circuit

Court of Appeals and
their support of the federal government’s position in their
opinion in Johnson v.
Eisentrager. The Court differentiated between the constitutional
rights of citizens, legal
aliens, legal enemy aliens, and nonresident aliens.
The Court stated that an alien’s constitutional protections
depend upon his or
her legal status in terms of (1) their right to be inside the U.S.
and (2) upon “…an alien’s
presence within the territorial jurisdiction of the courts.”29
Thus, there is an implied
hierarchy of rights: U.S. citizens would have the greatest rights,
while nonresident aliens
would have the least rights. Legal aliens would have greater
rights than legal enemy
aliens.
Executive actions involving enemy aliens and nonresident aliens
would naturally
be greater during wars/armed conflicts. Read the bottom of page
450 in your textbook:
nonresident enemy aliens would have the lowest or least rights
under American law—

not even the right to access American courts. Thus, the German
prisoners in this case have
no rights to challenge their confinement in American courts
because they are enemy aliens
that have never been to the United States and who were
captured by American forces in
a foreign country as prisoners of war. These prisoners were
tried and convicted by
military commission for violations of the laws of war committed
in a foreign country and then
imprisoned outside the United States.30
Thus, the Germans had “no leg to stand on” according to the
Supreme Court.
Does this principle seem pretty solid and emphatic to you? What
is the takeaway from
this precedent? Foreigners fighting the U.S. government caught
overseas by the U.S.
military can be tried in military tribunals for violations of the
laws of war and such
foreigners can be legally imprisoned outside the United States
for their offenses. Even
more, these foreigners cannot use habeas corpus to challenge
the validity of their

7
detentions in American courts. This is the principle established
by the U.S. Supreme
Court in 1950.
Former President Bush relied upon this precedent in taking
actions against al
Qaeda operatives. The problem with this strategy became
manifest when the U.S.
Supreme Court determined that the War on Terrorism was
different enough from
WWII to make the Eisentrager precedent much weaker, as we
will see.
So next we will cover some more court precedents in terms of
the legality of
military detentions. There are several important cases on this
subject covered in
Chapter 8: Hamdi v. Rumsfeld (2004), Rumsfeld v. Padilla
(2004), Rasul v. Bush (2004), Al-
Marri v. Pucciarelli (2007), Boumedine v. Bush (2007), and
Hamdan v. Rumsfeld (2006).
Some of these cases look at domestic military detention. The
others look at

military detention abroad.
First, it must be restated that the Supreme Court decided that
the War on
Terrorism was not the same as the open international war of
WWII. The lines are more
“blurry” today, in other words. Although the Bush
administration relied upon the
WWII precedents in making policy on detention and prosecution
to deal with the 9/11
attacks, the federal courts held that the War on Terrorism
required a modification to
these precedents.31
We will first look at the legal validity of domestic military
detention. This is about
military detention of either U.S. citizens or resident aliens
arrested inside the United
States. After that, we will look at the validity of military
detention abroad under the law.
The first modern case that we will cover on this issues is Hamdi
v. Rumsfeld in
2004. Yaser Hamdi was a U.S. citizen that was engaged in
fighting on behalf of the
Taliban. Hamdi was captured in Afghanistan by anti-Taliban

forces and turned over to
the U.S. military. He was interrogated and then sent to
Guantanamo. Later, Hamdi was
sent to a military prison inside the United States. Then, a
habeas corpus petition
challenging his detention was filed.
Because Hamdi was engaged in fighting on behalf of the
Taliban, he was
classified as an enemy combatant (a person who is part of a
hostile force against the
U.S. and who also engages in armed conflict against the
U.S.).32 Hamdi denied this—he
said that he was there doing relief work and that he never
engaged in combat. Because
he was classified as an enemy combatant, he was not formally
charged with a crime and
was not given access to an attorney.
The trial court ordered Hamdi released, but the government
appealed to the U.S.
Circuit Court of Appeals, which upheld the government’s
position that Hamdi was an
enemy combatant. Hamdi then appealed to the U.S. Supreme
Court.

8
The Supreme Court ruled that the president has the power to
detain and
imprison enemy combatants for the duration of the conflict.
This is true of both U.S.
citizens and foreign nationals. However, U.S. citizens have the
right to challenge their
enemy combatant designation as part of due process and habeas
corpus rights. To
comport with due process, U.S. citizens accused of being enemy
combatants must
receive notice of the charges and an opportunity to challenge
the designation before a
neutral decision maker. After the ruling, the federal government
engaged in a plea
bargain with Hamdi—he was released and sent to Saudi Arabia.
Hamdi agreed to
renounce his U.S. citizenship and to submit to travel
restrictions.
Next is the case of Jose Padilla. Padilla was a U.S. citizen. The
U.S. government

found out about Padilla as a result of waterboarding a captured
al Qaeda operative.
Padilla was questioned in Chicago when he arrived in the U.S.
from an overseas flight.
He had more than $10,000 in cash in his possession at the
airport. Padilla was
supposedly involved in an al Qaeda plot to set off a “dirty
bomb” inside the United
States.
Padilla was detained on a material witness warrant involving the
9/11 attacks.
He was designated an enemy combatant, and was placed in a
military prison in South
Carolina for four years. His attorney filed a habeas corpus
petition. The U.S. Supreme
Court ruled in 2004 (Rumsfeld v. Padilla) that the Authorization
for the Use of Military
Force (AUMF) did not allow for the military detention of U.S.
citizens arrested inside
the United Sates. Padilla was not arrested in a foreign country
or on the battlefield.
Thus, this is a criminal justice matter, not a military matter,
according to the Supreme
Court.

After this decision, the federal government “…announced that
military detention
was no longer necessary and that Padilla would be transferred to
the custody of federal
law enforcement for the purposes of criminal prosecution...”33
Strangely, the criminal
charges did not involve fighting U.S. forces or the “dirty bomb”
plot---Padilla was
charged with conspiracy and material support. He received 17
years in prison after his
conviction. It has been argued that the apparent true purpose of
Padilla’s detention was
to obtain intelligence information about al Qaeda.
Our next case involving domestic military detention as part of
the GWOT is the
case of Ali al-Marri. We will look at the 2007 case of Al-Marri
v. Pucciarelli. This is a U.S.
Circuit Court of Appeals case.
The federal government only learned about al-Marri as a result
of the “enhanced
interrogation” of Khalid Sheik Mohammed (KSM). Al-Marri
came to the United States
the day before the 9/11 attacks on a student visa to attend a

university in Illinois. Al-
Qaeda sent him to the United States to be a “sleeper agent.” He
was arrested in
9
December 2001 as a material witness in the investigation of the
9/11 attacks. He was
detained as material witness in both Illinois and New York City
for more than one year.
Al-Marri was in possession of false identification. During the
course of a search
of al-Marri’s computer, the FBI found more than 1,500 stolen
credit card numbers with
corresponding names of the account holders. This was the basis
for charging him with
credit card fraud, making false statements to a federally insured
bank, and identity
fraud.
Federal investigators also found information on his computer
about how to
construct a weapon of mass destruction (WMD) that would
deploy hydrogen cyanide.

There was also information stored on his laptop about
conducting jihad. It was
demonstrated that he had communicated with KSM by phone
and email and a Dubai-
based al-Qaeda paymaster.
Under the AUMF (which authorized military detention of al
Qaeda operatives
captured inside the U.S.), former President Bush designated al-
Marri as an enemy
combatant subject to military detention. At that point, the
federal government
dismissed his criminal indictments.
Al-Marri was put in military custody at a U.S. Naval facility in
South Carolina.
From that detention, al-Marri filed a habeas corpus petition in
U.S. District Court. It was
only at that point that an American intelligence official
disclosed a summary of the
evidence against al-Marri, which is presented on page 463 of
the textbook.
The District Court rejected al-Marri’s habeas corpus petition in
2006. The District
court ruled that the president had the authority under the law to

detain a non-U.S.
citizen apprehended in the United States as an enemy
combatant. Further, the court
held that there was sufficient evidence to detain him as an
enemy combatant. Al-Marri
appealed to the U.S. Circuit Court of Appeals by making the
argument that the AUMF
did not allow the president to detain civilians.
The Circuit Court essentially decided against al-Marri in 2008.
It was ruled that
the president did indeed have sufficient authority pursuant to
congressional
authorization to detain al-Marri as an enemy combatant if the
allegations against him
were true. But the Circuit Court did not rule of the truth of that.
The court further ruled
that al-Marri had not received sufficient due process procedures
to challenge is
designation as an enemy combatant.34 The Circuit Court noted
that al-Marri was
apprehended in the United States, unlike Hamdi, who was
captured overseas and
engaged in hostilities against American forces.

For this reason The court decreed that al-Marri should be
provided the
opportunity to examine government evidence that he did the
things discussed on pages
10
464-465 in open court, rather than relying upon documents filed
by intelligence officials
without cross examination and other elements of due process. If
the state secret
privilege would be harmed by doing this, this should be
determined in a trial court
under CIPA rules and procedures, the court appears to mean.
Five months later, in December 2008, the U.S. Supreme Court
agreed to hear the
case. Incoming “…President Obama ordered a factual and legal
review of the basis for
al-Marri’s detention as an enemy combatant, as well as the
identification and evaluation
of alternative approaches, which culminated in the filing of
criminal charges back in
Illinois.”35 In other words, former President Obama chose the

civilian criminal justice
option for a-Marri. By doing so, the federal government
requested that the Supreme
Court “…to dismiss al-Marri’s case and authorize his transfer to
civilian custody to
stand trial, which the Court granted in March 2009.”36
This seemed to be what al-Marri wanted, or perhaps he was
tired. In any event,
he plead guilty to conspiracy to provide material support to a
Foreign Terrorist
Organization (FTO) and was sentenced to more than 8 years in
federal prison. It would
have been more, but he received credit for the 7+ years that he
has already served in
military and civilian detention. He was released in 2015 and
moved to Qatar.
Next, we will look at the controversial detention provisions
contained in the
NDAA (National Defense Appropriations Act) of 2012. In
addition to providing
funding to support military operations, the law contained a
provision allowing the
indefinite detentions of U.S. citizens and legal aliens captured
in the United States. The

NDAA defines and clarifies who is subject to detention under
the AUMF. As Luna and
McCormack say, “Depending upon one’s perspective,…NDAA
either simply clarifies
existing law or instead greatly expands the scope of the war on
terrorism.”37
The NDAA allows the detention of persons involved with the
9/11 attacks in
addition to persons who “substantially supported al-Qaeda, the
Taliban, or associated
forces that are engaged in hostilities against the United
States…”38 While former
President Obama stated that he would not use this power to
indefinitely lock up U.S.
citizens without trial, Congress argued that the powers were not
new nor expanded---
that it simply clarified the AUMF due to court decisions
interpreting the latter
differently. So far, this law has not been used to expand
military detentions. This may
change under a new administration.
Next, it is necessary to examine the controversial topic of
military detention

abroad as part of the Global War on Terrorism.
Based upon the Eisentrager precedent, the Bush administration
decided to use the
U.S. Naval base in Guantanamo Bay, Cuba as a holding and
interrogation center for
enemy combatants caught by U.S. forces overseas during the
course of the war on
11
terrorism. In January 2002, the first detainees began to arrive in
Cuba. About 800
terrorism detainees have been sent there over the years from 48
different countries.
However, most are from middle-eastern nations, especially
Yemen, Saudi Arabia, and
Afghanistan.
Most detainees were questioned and released either back to their
native countries
or to other countries willing to accept them. Under the original
plan of the Bush
administration, the remaining detainees were either to be tried
by military commissions

or to be detained indefinitely for the purpose of incapacitation.
Not surprisingly, there
has been extensive litigation on Guantanamo in terms of the
legal status and due
process rights of the detainees.
In 2001, the Dept. of Justice’s Office of Legal Counsel advised
the Bush
administration that members of foreign terrorist organizations
such as al Qaeda and the
Taliban were not covered by the Geneva Conventions, and that
they also did not qualify
as POWs (prisoners of war). According to this advice, these
things were true because
such persons belonging to non-state organizations cannot be
party to international
agreements regarding war. Also, Common Article 3 did not
apply because the conflicts
were international in scope.
At first, habeas corpus petitions filed by the detainees were
rejected and
dismissed by federal trial courts based upon the Eisentrager
precedent—the idea was
“that habeas corpus does not extend to aliens held in enemy

custody outside of [the]
U.S…”39
The problems for the Bush administration came on appeal—the
Ninth Circuit
Court of Appeals found that the detainees did have the right to
habeas corpus, because
the base at Guantanamo is U.S. territory. Remember that in
Eisentrager, the Germans
were held outside the United States.
The U.S. Supreme Court agreed with this reasoning in the 2004
case of Rasul v.
Bush. In Rasul v Bush, the Court held that Eisentrager did not
apply because the prisoners
at Guantanamo (Kuwait and the United Kingdom in the case)
were not from countries
formally at war with the United States; they had not been
afforded access to any type of
tribunal [even a military commission]; they denied engaging in
war/armed conflict
with the U.S., and they were imprisoned for more than two
years in territory controlled
by the United States. Thus, every person, regardless of
citizenship, had the right to file a

habeas corpus petition from Guantanamo.
The Supreme Court went to great lengths to distinguish Rasul
from Eisentrager.
The Germans in the latter case had been caught engaging in
active hostilities which they
did not deny. Plus, they had been tried and convicted by
military commission. The
Guantanamo detainees had not been tried or convicted, plus they
were held in U.S.
12
territory. It is thus appropriate to have a federal court determine
their status, according
to the Supreme Court’s ruling.
Two things happened in reaction to this decision: (1) the Bush
administration
moved to try some detainees by military commissions, while
others had their enemy
combatant status officially determined, and (2) Congress tried
to support the Bush
approach by passing a law (Detainee Treatment Act of 2005
[DTA]) to get around the

decision. Basically, there was a backlash against the Rasul
decision---there was a feeling
by the elected branches that the Supreme Court was too
sympathetic to the detainees.
The first part of this reaction was that the Bush administration
acted on its own
initiative. Six persons were charged with violations of the laws
of war (like the Germans
in Eisentrager) and set for trial by military commissions. The
remaining detainees were
sent before newly created CSRTs (Combat Status Review
Tribunals) to determine
whether or not a given detainee was or was not an enemy
combatant (someone who
was part of or involved with supporting the Taliban or al
Qaeda.40 By this time, “enemy
combatant” had been redefined as “an individual who was part
of or supporting
Taliban or al Qaeda forces, or associated forces that are
engaged in hostilities against the
United States or its coalition partners.”41
The Dept. of Defense set up the CSRTs composed of three
military officers

charged with using the preponderance of the evidence standard
to determine whether
or not a given detainee was an enemy combatant. A total of 581
persons were put
through the CSRT tribunals. 39 were found not to be enemy
combatants.42
In terms of due process rights, each detainee had the right to
view non-classified
information about their initial classifications as enemy
combatants, and they had the
right to speak in their own defense. They were not given the
right to an attorney, but
instead were provided access to a military officer who would
act as their “personal
representative” to assist in presenting their case to the tribunal.
The federal rules of evidence did not apply, and the tribunal
could, if it chose,
rely upon classified intelligence information that was not
disclosed to the detainee.43
Therefore, it should not be surprising that more than 90% were
found to be enemy
combatants.
In addition to the CSRTs, the Dept. of Defense set up
Administrative Review

Boards (ARBs) to look each year into the cases of each enemy
combatant housed at
Guantanamo to determine if their continued detention was
necessary. Specifically, the
ARBs looked at a detainee’s intelligence value, the threat posed
to the United States, etc.
Based upon this assessment, the ARB would then recommend
that the detainee
continue to be locked up at Guantanamo, transferred for civilian
prosecution, or
released.
13
Approximately 85% were continued for Guantanamo detention,
with only 14 out
of 1100 recommended for release and 31 referred for criminal
prosecution. Based upon
these numbers, it is a fair assessment to conclude that the
primary goal or objective of
Guantanamo was incapacitation, rather than punishment or
retribution. The Bush

administration took these actions on its own initiative, as noted
above.
Meanwhile, Congress enacted the DTA (Detainee Treatment
Act) of 2005 in an
effort to repudiate the Rasul decision. The DTA formally
supported and endorsed the
Bush administration’s decision to establish the CSRTs. Also, it
stipulated that the U.S.
Circuit Court for the D.C. Circuit was the only federal court
with the jurisdiction to
review whether or not the CSRTs performed their jobs
correctly.44
Going even further, the DTA attempted to eliminate habeas
corpus review for
detainees in the federal courts. Even though Congress has the
authority to establish and
to limit the jurisdiction of the federal courts, the federal courts
do not appreciate efforts
to Congress to do so. Essentially, the federal courts do not like
it when Congress tried to
limit their authority to hear cases. For that reason, the federal
courts have sometimes
made decisions to “strike back” at the elected branches of
government.

One such example occurred in Hamdan v. Rumsfeld (2006).
Hamadan challenged
the military commissions system. In review, a military
commission is essentially a
military court established for a particular purpose, such as
determining a status under
the laws of war. Usually, military commissions are set up
outside the United States in
areas where then civilian courts are not operating. The Detainee
Treatment Act of 2005
retroactively approved the Combat Status Review Tribunals as a
military commission
set up at Guantanamo. Further than that, the DTA eliminated the
jurisdiction of federal
courts to hear habeas corpus petitions from the Guantanamo
detainees.45
As noted above, former President Bush ordered that
Guantanamo detainees be
tried by military commission. In 2006, Bush announced that 6
detainees, including
Salim Hamdan, would be tried by military commission. Hamdan
was Osama Bin
Laden’s bodyguard and driver. He was charged with conspiracy
and receiving

weapons training at an al Qaeda camp, among lesser offenses.
Hamdan filed a habeas corpus petition in federal court before
the DTA was
passed. He alleged that he was entitled to prisoner of war status
under the Geneva
Conventions and that the military commission (CSRT) violated
the UCMJ (Uniform
Code of Military Justice) because the latter did not make
conspiracy a crime.
The U.S. Supreme Court agreed with Hamdan and went even
further. The Court
held that the military commission violated the Geneva
Conventions, because they were
not a regularly constituted court—that is a military court set up
in accordance with the
14
laws already in force. The military commission established by
President Bush had not
been authorized by Congress at the time that it was formed.
The Supreme Court also ruled that Common Article 3 of the
Geneva

Conventions applied to Hamdan. Since Congress had not
authorized military
commissions, Bush’s power was at its lowest ebb.
This case was decided in 2006. Remember that in 2005,
Congress reacted to the
Rasul decision by enacting the Detainee Treatment Act, which
took away habeas corpus
rights from Guantanamo detainees. Hamden got “under the
wire,” because he filed his
petition prior to the DTA going into effect.
In further reaction to the Supreme Court in the Hamdan case,
Congress again
passed a new law called the Military Commissions Act of 2006.
This law further
limited habeas corpus petitions in the federal courts. Read the
top of page 479 in your
textbook. This led to the case of Boumedine v. Bush in 2007.
Basically, the U.S. Supreme
Court declared that the Guantanamo detainees still possessed
habeas corpus rights
despite federal law clearly stating otherwise. The Court held
that the Constitution gave
them the power to decide the case, regardless of the 46fact that

the jurisdiction of the
federal courts is set by Congress.
In response to these decisions, Congress once again passed laws
in an effort to
work around the Supreme Court rulings. The Military
Commissions Act formally
established military tribunals to deal with the Guantanamo
detainees in response to the
Hamdan decision. Under the 2006 law, military commissions are
headed by a military
judge. A panel of five military officers must vote on the guilt or
innocence of the
detainee. If the death penalty is sought by the government, 12
military officers must
hear and vote on the case. The standard of proof is beyond a
reasonable doubt. The
defendant has the right to a free military attorney. The
defendant also has the right to be
present at all times and the right to confront and cross-examine
witnesses. In terms of
classified information, the CIPA procedures apply as in the
regular federal courts.
The idea here was to set up a so-called “regularly constituted
court” to overcome

the Supreme Court’s objections. Persons classified as “alien
unprivileged enemy
belligerents” are susceptible to trial by military commissions.
These are persons who
have “engaged in hostilities against the U.S. or is coalition
partners,” have
“purposefully and materially supported hostilities against the
U.S. or its coalition
partners,” or “was a part of al Qaeda at the time of the alleged
offense.”47
To convict a detainee and to imposed a sentence of up to 10
years in prison
requires a 2/3 vote of the military officer jury. For more than 10
years, it requires a ¾
vote. To impose the death penalty, a unanimous vote is
required.
15
The Military Commissions Act established an appeals process as
well. Those
convicted may appeal the sentence to the U.S. Court of Military
Commission Review,

which is a special military appellate court composed of three
military judges. The
decision of this body can be appealed to the U.S. Circuit Court
of Appeals in
Washington, DC. In theory, the decision can be again appealed
to the U.S. Supreme
Court.
After the Military Commissions Act was passed, former
President Bush re-
started the commissions, again gaining some convictions. When
Barack Obama became
president in 2009, he immediately suspended military
commissions until a review was
completed. Six months later, Obama announced that he was re-
start the military
commissions and would use them along with the regular federal
courts to deal with the
Guantanamo detainees. When possible, Obama favored taking
detainees to the regular
federal courts.
Former President Obama persistently tried to close Guantanamo,
but Congress
did not allow this to occur. Congress has enacted a law to

prohibit spending tax dollars
to transfer Guantanamo detainees to mainland prisons. President
Trump is a strong
supporter of keeping the base open.
Conservatives favor the use of military commissions for
Guantanamo detainees
because it is quicker and cheaper than the regular civilian trial
court process. They
argue that this is more appropriate forum for enemy combatants
who have violated the
laws and customs of war. Liberals want federal courts to make
these determinations,
because it is more open and adversarial. They say that trials in
regular civilian courts
better protect the rights of Guantanamo detainees. Once again,
“where you stand
depends on where you sit.”
The Supreme Court has taken the position of Ex parte Milligan
in recent years—
persons accused of crimes should be tried by civilian courts
whenever possible.
Now we will try to clear up some terminology from the post-
9/11 court

decisions and determinations made by the Bush administration.
“Enemy combatants
come in many shapes and forms. They can be paramilitary,
militia, mercenary, rebel,
revolutionary, guerrilla, terrorist, or insurgent. They can be
women and children,
criminals and delinquents, sympathizers and supporters, or
disabled and
deranged. They can be part of previously unknown networks
and subcultures. How
does one distinguish, theoretically, ethically, and appropriately,
"legals" from "illegals"
among the many combatants one encounters? The answer is that
for many years, the
Hague Regulations and Protocols made the following
distinctions:
16
(1) lawful combatants
(2) unprivileged belligerents

One's conduct on the battlefield determined if one was a
combatant, and
one's status as a member of an armed force determined
belligerency. Today, those
distinctions are not easily made, and the latest addition to our
vocabulary is the phrase
"unlawful enemy combatant." This awkward phrase, as many
critics of the U.S.
approach have pointed out, actually represents a long record of
people in questionable
status categories -- pirates, spies, saboteurs, bandits, brigands,
bushwhackers, and so
on. Their behavior often defies categorization, but what is
certain is that prisoner of
war (POW) status is, and should always be, restricted to lawful
combatants. Unlawful
combatants are difficult to distinguish from ordinary criminals
who should be held
accountable at ordinary criminal law. There are, of course,
many difficulties,
challenges, and debates over how to establish lawful
accountability over unlawful
actors.
It may be helpful to clear up what the term "unlawful" means.
Those people ascribed
the status of "unlawful combatant" (sometimes called
unprivileged combatant, irregular
soldier, or…"free shooter" or armed resistance fighter) are
usually cases of doubt as to
whether they should be granted POW (Prisoner of War) status or
criminal status. In
other words, the reference is to someone in-between two
statuses, someone in-between a
POW (military enemy) and a criminal (societal menace). In
scientific terms, an in-

between category is technically a typological anomaly where the
endpoints are
continuous rather than discrete); and in lay terms, an in-between
category is called
"limbo." Under Geneva Convention III Articles 4 and 5, an
"unlawful combatant" is
simply defined as someone who commits belligerent acts but
does not qualify as a
lawful combatant. Geneva III urges, but does not require, a
"detaining power" grant
unlawful combatants POW status. Further, Geneva IV holds
they should be treated
humanely and receive a fair trial, especially if they qualify as a
"protected person"
which occurs when the detaining power is satisfied about its
suspicions and has
concluded its investigation that the person is more of a social
menace than military
enemy.
It may also be helpful to clear up what the term "enemy"
means. Some "illegal
combatants" are not quite enemy and not quite criminal. By
most definitions, an enemy
is a person who fights by military means. The problem,
however, is that illegal (enemy)
combatants are civilian fighters who pursue military objectives
outside the laws of war. That
is, they engage in ambushes, skirmishes, sabotage, raids, and
other irregular rear-guard
actions such as scouting for the enemy. As rear-guard actors,
they often possess a kind
of raw ruthlessness which comes from not being adequately
trained, compensated, or
supported for their actions. They may have received some
training, but more likely

they have learned secretly or vicariously just as some learning
theories in criminology
say criminals rehearse their actions mentally beforehand. They
are frequently
http://www.brookings.edu/comm/transcripts/20020311.htm
http://www.brookings.edu/comm/transcripts/20020311.htm
17
volunteers, part-timers, or infiltrators. They exemplify
"asymmetric warfare" at its
finest, exploiting every possible weakness of those they secretly
oppose or whom their
allies, the "real" enemy, is fighting…that such "fifth columns"
are often more dangerous
and destructive than regular fighting forces.”48
As you can see, how to deal with captured terrorists and other
enemy
combatants has posed complex problems for the United States in
terms of both
domestic and international law.
The combination of history, practice, and the precedents
developed by the
federal courts since 9/11 have “changed the rules” compared
with the old armed
conflict between internationally recognized nation-states
paradigm. As the GWOT
continues, the new rules will mostly likely continue to evolve.
1 Eric Luna and Wayne McCormack, Understanding the Law of

Terrorism 2nd Edition, Charlottesville, Matthew
Bender and Co., Inc. (LexisNexis) 2015: 441-514.
2 Ibid: 441-442.
3 Ibid: 442.
4 Ibid.
5 Ibid: 442-443.
6 Ibid: 493.
7 Ibid: 442.
8 Ibid.
9 Ibid: 441.
10 Ibid: 442.
11 Ibid.
12 Ibid: 442-443.
13 Albert P. Melone, Researching Constitutional Law,
Glenview, Scott Forseman-Little Brown Higher Education,
1990: 166.
14 Ibid: 167.
15 Luna and McCormack, Understanding the Law of Terrorism:
443.
16 Ibid: 445-447.
17 Ibid: 447.
18 Ibid.
19 Ibid.
20 Ibid: 448.
21 Ibid.
22 Ibid.
23 Ibid.
24 Ibid.
25 Ibid.
26 Ibid: 450.
27 Ibid: 452.
28 Ibid.
29 Ibid: 450.
30 Ibid: 451.
31 Ibid: 484.
32 Ibid: 454.

33 Luna and McCormack, Understanding the Law of Terrorism:
460.
18
34 Ibid: 464.
35 Ibid: 465.
36 Ibid: 466.
37 Ibid: 466.
38 Ibid.
39 Ibid: 470.
40 Ibid: 473.
41 Ibid.
42 Ibid: 474.
43 Ibid.
44 Ibid: 476.
45 Ibid: 478.
46 Ibid: 480.
47 Ibid: 499.
48 O'Connor, T. (2014). "Preventive Detention and Torture,"
MegaLinks in Criminal Justice. Retrieved from
http://www.drtomoconnor.com/3030/3030lect07a.htm.

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