Also known as:enemy combatant · unlawful combatant
Written by attorneys · grounded in primary & secondary sources — see below
A designation applied by the executive to persons captured in armed conflict whom the government may hold in preventive military detention without criminal charges. The designation triggers constitutional limits requiring a meaningful opportunity for U.S. citizens to contest the factual basis before a neutral decisionmaker and requiring a meaningful substitute for habeas corpus review when Congress strips jurisdiction for aliens.
Sources & Authorities
How it applies
Common Examples
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Alien Detainee Seeks Habeas Substitute
Elena Estrada, a foreign national seized abroad and held at a U.S.-controlled facility, receives only an internal military board review that bars counsel, live testimony, and newly discovered exculpatory evidence while lacking power to order release. She petitions for habeas corpus. The court must decide whether the statute eliminating jurisdiction supplies an adequate substitute that lets her challenge the president's detention authority and contest the underlying facts.
Citizen Denied Any Hearing Forum
Elise Everly, a U.S. citizen software engineer arrested at a domestic technology hub and transferred to a military brig, is designated an enemy combatant on classified intelligence summaries. The government provides no forum at all for her to appear before a neutral decisionmaker or rebut the allegations. She sues, claiming the complete absence of process violates due process even when procedures may be tailored for military needs.
Select any source to read its text and confirm it supports the definition.
Cases
Statutes
Casebooks
Study Supplements
Military Commission Procedures Challenged
Erika Echevarria, captured during hostilities and tried before an executive-created military commission, objects that the commission's rules deny defense counsel access to classified evidence and fail to establish proper jurisdictional findings. She argues the commission exceeds statutory limits on how enemy combatants may be tried.
Hamdan v. Rumsfeld548 U.S. 557 (2006)
Saboteurs Tried by Military Commission
Ethan Evans and other operatives landed by submarine on U.S. shores in civilian clothes to conduct sabotage. Captured before completing their mission, they are designated enemy combatants and tried by military commission rather than civilian courts for violations of the law of war.
Ex parte Quirin317 U.S. 1, 63 S.Ct. 1, 87 L.Ed. 3 (1942)
Standing Challenge to Surveillance Program
Elliot Edmonds, an attorney representing clients who communicate with persons abroad, alleges that government surveillance chills those communications and that the program sweeps in protected activity. He sues to enjoin the program on the ground that it exceeds statutory and constitutional authority.
Clapper v. Amnesty International USA568 U.S. 398 (2013)
Common questions
Frequently Asked
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What minimum process must the government afford a U.S. citizen designated an enemy combatant?+
A U.S. citizen held in the United States as an enemy combatant is entitled under the Due Process Clause to a meaningful opportunity to contest before a neutral decisionmaker the factual basis for detention. Procedures may be tailored for military exigencies, including use of hearsay and rebuttable presumptions favoring the government, but the government cannot deny all opportunity to refute the allegations.
Supporting sources
When does a statutory substitute for habeas corpus satisfy the Suspension Clause for alien enemy combatants?+
Any substitute must allow detainees to challenge the president's authority to detain them indefinitely, contest the military commission's fact-finding, introduce exculpatory evidence discovered after commission proceedings, and seek release. An internal board that bars counsel, live testimony, cross-examination, and new evidence and lacks power to order release is not a meaningful substitute.
Supporting sources
Does an internal executive review panel satisfy due process for a citizen enemy combatant?+
No. A panel composed entirely of officials in the same chain of command that relies solely on classified summaries, bars the detainee from presenting evidence or cross-examining witnesses, and provides no adversarial testing is neither neutral nor meaningful. Due process requires at least some real opportunity to contest the factual basis before an independent decisionmaker.
Supporting sources
548 U.S. 557 (2006)Constitutional Law
…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…