In the aftermath of the September 11, 2001 attacks, the US government also adopted several new measures in the classification and treatment of prisoners captured in the War on Terror, including applying the status of unlawful combatant
to some prisoners, conducting extraordinary renditions, and using torture.
However, the Constitution does not provide substantive standards that describe what conduct must be proved to detain someone as an unlawful combatant
or what level and type of proof is necessary to justify continuing to hold a prisoner as an unlawful combatant
and for how long.
Much in the same way that the United States used the term unlawful combatant
to circumvent international law in the post-9/11 era, the EU similarly is using the irregular migrants label to bypass legal rights to asylum and enforce mass transfers.
(217-221) But I am not persuaded by her claim the concept of "unlawful combatant
" in itself "suffers from internal inconsistencies," (190, 222) since that term can simply refer today to a fighter who does not satisfy all of the Geneva Convention criteria required to be accorded full POW status.
That made him both an enemy combatant and--more specifically--an unlawful combatant
, having committed acts in violation of the traditional law of war.
In its discussion of the status of "unlawful combatant
Sarsak was never charged but was jailed as an unlawful combatant
(145) The detention ends when the Chief of Staff believes that the detainee can no longer be defined as an unlawful combatant
or that his release will not harm state security.
The term unlawful combatant
first gained currency in the 1942 Supreme Court case of Ex parte Quirin.
(85) But the Manual cross-referenced the murder in violation of the law of war definition with a comment to another offense, (86) which included this key sentence: "For the accused to have been acting in violation of the law of war, the accused must have taken acts as a combatant without having met the requirements for lawful combatancy." (87) In other words, whatever act makes one an unlawful combatant
is a per se violation of the law of war.
These issues of detention and criminal culpability are, however, best understood as consequences of the core significance of the unlawful combatant
(90) The Military Commission suspended the charges against him on the grounds that his combatant status merely states "enemy combatant" while the Commission's jurisdiction only extends to the trial of "unlawful enemy combatants." (91) Determination of whether he was a lawful or unlawful combatant
would essentially decide his fate, because if he had lawful combatant status when he caused the death of Sergeant Speer, he would be immune from prosecution.