WHAT IS AN "UNLAWFUL COMBATANT," AND WHY IT MATTERS:
The Status Of Detained Al Qaeda And Taliban Fighters

By MICHAEL C. DORF
Wednesday, Jan. 23, 2002

According to Defense Secretary Rumsfeld, the Taliban and al Qaeda fighters currently being held captive at the United States Naval Base at Guantanamo Bay, Cuba, are not prisoners of war, but "unlawful combatants." What's the difference?

The short answer is that a prisoner of war is entitled to the protections set forth in the 1949 Geneva Convention. In contrast, an unlawful combatant is a fighter who does not play by the accepted rules of war, and therefore does not qualify for the Convention's protections.

Buried within that short answer, however, are a host of complexities and troubling implications.

Are al Qaeda Fighters Prisoners of War?

First, what does it take to qualify as a prisoner of war? Article IV of the Geneva Convention states that members of irregular militias like al Qaeda qualify for prisoner-of-war status if their military organization satisfies four criteria.

The criteria are: "(a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; [and] (d) that of conducting their operations in accordance with the laws and customs of war."

Al Qaeda does not satisfy these conditions. Perhaps Osama bin Laden could be considered "a person responsible for his subordinates," although the cell structure of al Qaeda belies the notion of a chain of command. But in any event, al Qaeda members openly flout the remaining three conditions.

Al Qaeda members deliberately attempt to blend into the civilian population - violating the requirement of having a "fixed distinctive sign" and "carrying arms openly." Moreover, they target civilians, which violates the "laws and customs of war."

Thus, al Qaeda members need not be treated as prisoners of war.

Are Taliban Fighters Prisoners of War?

The question whether detained Taliban members qualify as prisoners of war under the Geneva Convention's test is more difficult - as one might instinctively think, given that the Taliban fighters resemble a traditional army to a greater extent than do the al Qaeda fighters, who come from a variety of different nations and principally attack civilians.

The Taliban was never recognized as the legitimate government of Afghanistan by the United Nations or the United States, and only a handful of countries ever established formal diplomatic relations with the Taliban. Nevertheless, despite its lack of formal recognition, the Taliban would still be entitled to the protections of the Geneva Convention if it satisfied the four criteria listed above.

Did it? To begin, the Taliban has, or at least formerly had, a tighter command structure than al Qaeda, suggesting it might satisfy the first criterion of "being commanded by a person responsible for his subordinates." However, Taliban members did not appear to satisfy the second and third criteria, for they did not wear uniforms that bore a "fixed distinctive sign recognizable at a distance," nor did they invariably "carry arms openly."

Should these facts disqualify them from prisoner-of-war status?

Until recently the Taliban was the actual (though not recognized) government of Afghanistan, and it was attacked as such by the United States, albeit in justifiable self-defense. If Taliban members did not wear distinctive uniforms before we attacked, one might think that they should not be faulted for failing to don such uniforms immediately once the shooting started.

But in the end, this argument is unpersuasive. The requirement of a distinctive sign is no mere technicality. Its object, like many of the laws of war, is to enable the enemy to distinguish combatants from civilians, and thus to minimize civilian casualties. Yet the Taliban made clear that it was not interested in complying with the letter or spirit of the law of war.

For example, when it still controlled Kabul, the Taliban hid military equipment among the civilian population. Furthermore, as the war unfolded, it became increasingly difficult to distinguish the Taliban from al Qaeda - which, as we have seen, clearly does not qualify to have its members treated as prisoners of war.

A Consequence of POW Status: No Tribunal Trials

Even if not technically prisoners of war, al Qaeda and Taliban captives still qualify for "humane treatment" under the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, a resolution adopted by the United Nations General Assembly in 1988.

Moreover, one might wonder, what is the harm in affording the captives somewhat better treatment than they are entitled to under international law? After all, the Geneva Convention hardly requires that prisoners of war be housed in four-star hotels.

The Administration's objection to affording al Qaeda and Taliban captives prisoner-of-war status probably has less to do with the conditions in which the captives are held than with what the Administration plans to do with them in the long term.

Under President Bush's military order of November 13, al Qaeda members and those who harbored them can be tried by military tribunals. The Supreme Court approved the use of such tribunals for unlawful combatants in the 1942 case of Ex Parte Quirin.

Most of the public discussion of the President's order and the Quirin case has centered on the question of when a defendant can be subject to the jurisdiction of a military tribunal rather than a civilian court. But whatever the answer to that question, Quirin takes for granted that only unlawful combatants can be tried by the sort of irregular tribunals at issue in that case and contemplated by the President's order.

Lawful combatants - that is, prisoners of war - are entitled to substantive and procedural protections not contemplated by Bush's order. Accordingly, the question of whether al Qaeda and Taliban fighters are prisoners of war or unlawful combatants turns out to matter a great deal, at least potentially.

Does the Guantanamo Detention Moot the Issue?

To be sure, American courts might not have occasion to decide the question whether al Qaeda and Taliban captives are in fact unlawful combatants. That is because another Supreme Court decision - the 1950 ruling in Johnson v. Eisentrager - holds that enemy aliens who have not entered the United States are not entitled to access to our courts.

Accordingly, so long as the al Qaeda and Taliban fighters are held at Guantanamo Bay and thus not deemed to have entered the U.S., their only route of appeal would appear to be within the Executive Branch. Put more bluntly, they will have only the procedural recourse the Administration allows them.

However, the applicability of Eisentrager to the present circumstances is itself open to question, for two reasons. First, in that case, the Court relied on the existence of a formal declaration of war and the fact that the German petitioners were citizens of a hostile sovereign power.

In contrast, in the present conflict, whether Congress's joint resolution authorizing the use of force counts as a declaration of war, and whether al Qaeda is sufficiently state-like to count as a foreign sovereign, are open questions.

Second, while Eisentrager holds that the Constitution permits the government to deny enemy aliens outside the U.S. access to our courts, federal statutes can be construed to afford such enemy aliens greater court access than the Constitution alone requires. Under that construction, the President's military order would be invalid. (Note that the President's order also purports to eliminate judicial review even for aliens within the United States, a position clearly at odds with statutory and constitutional law, but one that is not directly relevant to the fate of the Guantanamo Bay captives.)

For these two reasons, Eisentrager's application to the present circumstances is uncertain. Accordingly, it is understandable that the Administration would be eager to classify those captives it plans to try by military commission as unlawful combatants.

If the captives are unlawful combatants, they fall within the rule of Quirin. And if so, it does not matter whether they also fall within the rule of Eisentrager: If they do not, they are entitled to habeas corpus review, but a court entertaining their habeas corpus petitions would be obliged to uphold their convictions under Quirin.

Another Consequence of POW Status: Repatriation

There is a further reason why the Administration is eager to deny prisoner-of-war status to the al Qaeda and Taliban fighters. Article 118 of the Geneva Convention requires that prisoners of war be "repatriated without delay after the cessation of active hostilities." Thus, if the captives are prisoners of war, they must eventually be returned to their home countries.

That prospect is troubling. At the end of a war between conventional foes, it is expected that repatriated fighters will resume their civilian lives. Individual veterans might continue to harbor ill will towards their former enemies, but for the most part, peace between nations tamps down such feelings.

But there is good reason to worry that Taliban and especially al Qaeda fighters will not so readily have a change of heart. Members of al Qaeda do not act out of patriotic duty to obey the commands of a military leader, but out of an ideology that instructs them to attack and kill American civilians as a means of entering the kingdom of heaven. It is doubtful that any formal cessation of hostilities would lead them to abandon what they regard as a jihad.

Moreover, unlike traditional soldiers, al Qaeda members do not need an army in order to act. As we have learned, they can act in small groups or even individually. For this reason, too, repatriation seems far more dangerous for an al Qaeda member than for a traditional soldier.

War Without End: Indefinite Detentions?

The truth is that whether we try them in civilian courts, courts martial, ad hoc military tribunals, or not at all, the al Qaeda and at least some of the Taliban captives may be too dangerous ever to be released. Assuming that many or most of them will not be subject to the death penalty, that commits the United States to detaining them indefinitely.

The Administration's response to this problem is to deem the Taliban and al Qaeda fighters unlawful combatants who are not entitled to anything better than indefinite detention.

As we have seen, the contention that these fighters are unlawful combatants is based upon a plausible reading of the Geneva Convention. Indeed, it would be difficult to come to any other conclusion when applying the Geneva Convention's four-part test to al Qaeda fighters.

Nevertheless, treating the al Qaeda and Taliban captives as prisoners of war, whether or not they are legally entitled to the status, would be less risky than it may at first appear. So long as al Qaeda and its deadly ideology exists, we cannot say that there has been, in the words of the Geneva Convention, a "cessation of active hostilities," entitling the captives to be released. In that respect, as in others, this is a different type of war indeed.


Michael C. Dorf is Vice Dean and Professor of Law at Columbia University.

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