Also known as: enemy combatants · unlawful combatant · unlawful enemy combatant
Written by attorneys · grounded in primary & secondary sources — see below
A person captured and detained while serving in a hostile force during open warfare. In U.S. constitutional law an individual alleged to be part of or supporting forces hostile to the United States may be held without criminal charge subject to due process protections when the detainee is a citizen held inside the United States.
Elliot Edmonds, a foreign national captured abroad, was transferred to a U.S.-controlled detention platform and labeled an enemy combatant. A statute channeled all review to a maritime security board that could not reopen factual findings, consider new exculpatory records, or order release. Elliot petitioned for habeas corpus in federal court.
Emma Erickson, a U.S. citizen seized at her workplace during a declared security emergency, was placed in military custody as an enemy combatant. The government relied solely on classified summaries and offered no forum before a neutral decisionmaker. Emma filed a habeas petition seeking an opportunity to contest the designation.
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Elise Everly, a foreign national held at Guantanamo, faced charges before a military commission convened by executive order. The commission permitted undisclosed intercepts and denied defense access to evidence. Elise sought habeas relief arguing the commission lacked proper jurisdiction.
Enzo Eastwood and other individuals landed on U.S. shores in civilian clothes carrying explosives during World War II. They were captured and designated enemy combatants. The government convened a military commission to try them for violations of the law of war.
Erika Echevarria, an attorney representing clients with overseas contacts, challenged government surveillance programs on the ground that her communications might be intercepted. She alleged the programs facilitated detention of persons later labeled enemy combatants. Erika sought declaratory relief in federal court.
A U.S. citizen held in the United States as an enemy combatant is entitled to a meaningful opportunity to contest before a neutral decisionmaker the factual basis for detention. Due process permits tailoring such as use of hearsay and rebuttable presumptions favoring the government but does not allow complete denial of any contest opportunity.
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Congress may not categorically deny habeas corpus review to aliens detained as enemy combatants without a meaningful substitute. Any substitute must permit challenge to the President's authority to detain indefinitely, contest fact-finding, introduce post-proceeding exculpatory evidence, and seek release.
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United States citizenship does not prevent a person from being designated an enemy combatant. A citizen captured on the battlefield or supporting hostile forces may be detained for the duration of hostilities subject to constitutional limits on process.
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…upon trial and conviction by military commission.” Id. , at 784. This consideration is easily satisfied here, as Hamdan is an unlawful combatant charged with joining and conspiring with a terrorist network dedicated to flouting the laws of war. 344 F. Supp. 2d 152, 161 (DC 2004); App. to Pet. for Cert. 63a–67a. C The fourth…