Who Is an Enemy Combatant? Law Remains Unclear

The legal status of enemy combatants remains murky. The U.S. Supreme Court has ruled on only one aspect: American citizens captured fighting in Afghanistan can be detained as long as they are granted due process in American courts. But most of the law is unsettled.

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This week the U.S. Supreme Court decided not to take the case of Jose Padilla, an American who's been held in South Carolina as an enemy combatant. Three people have been held as enemy combatants in the U.S. since the September 11, 2001 terrorist attacks and there're still many unanswered questions about how the government can treat them. NPR's Ari Shapiro reports.

ARI SHAPIRO reporting:

Imagine an old-fashioned scale. On one side we'll put the questions that the Supreme Court has answered about enemy combatants. On the other side of the scale, we'll stack the questions that are still unanswered. According to legal scholars, this imaginary scale is practically toppling over with the weight of the unanswered questions. In fact, Stanford Law Professor Jenny Martinez, who's worked on enemy combatant cases, says there's really only one thing the Supreme Court has clearly said on the subject.

Professor JENNY MARTINEZ (Stanford): Which is the president can detain a U.S. citizen captured fighting in Afghanistan as an enemy combatant as long as that person is afforded some due process by the courts. And I think that's the only question that's been answered.

SHAPIRO: Even that seemed to have a lot of caveats in it.

Professor MARTINEZ: Absolutely. You know, it only addressed battlefield captures in Afghanistan. In terms of what process an American citizen captured in Afghanistan would be entitled to, the court wasn't very clear on that either.

SHAPIRO: That narrow answer came in the case of Yasser Hamdi. The Supreme Court issued that ruling two years ago. Jose Padilla is another American citizen who was held as an enemy combatant. The major difference between his case and Hamdi's is that Padilla was detained in the U.S. while Hamdi was captured in Afghanistan. But the Supreme Court decided twice not to take the Padilla case. Andrew Patel is one of Padilla's attorneys.

Mr. ANDREW PATEL (Attorney for Jose Padilla): I had hoped for everyone's sake that the court had resolved some of these issues, but my aspirations and desires and curiosities and two bucks will get you on the subway.

SHAPIRO: The government indicted Padilla. That moved his case to criminal court, which led the justices to decide that the enemy combatant questions are moot for him. That leaves only one enemy combatant case remaining. Ali Al Marri is a citizen of Qatar, who was getting his master's degree in Illinois when he was arrested. First he was held as a material witness to terrorism, then as a criminal suspect, and now as an enemy combatant. The government says he was helping Al-Qaida. He's at the same Naval brig in South Carolina where Hamdi and Padilla were held. Jonathan Hafetz is his lawyer.

Mr. JONATHAN HAFETZ (Attorney): He does remain in legal limbo. His status is unclear. There's not been a definitive ruling about whether the government can hold him as an enemy combatant and whether he's entitled to a fair opportunity, even if they can hold him as an enemy combatant, to challenge the assertions against him.

SHAPIRO: The list of questions the court has not answered about enemy combatants stretches all the way to the most basic question: who exactly is an enemy combatant in the war on terror? Ruth Wedgwood is a professor of International Law at Johns Hopkins University. She says take a typical war with two uniformed armies facing each other...

Professor RUTH WEDGWOOD (Edward B. Burling Professor of International Law and Diplomacy, Johns Hopkins University): Then the combatants category is very broad. Then it includes the guy who holds the horses, includes the company cook. But you surely wouldn't want to extend it to the guy who delivers pizza to an al-Qaida cell.

SHAPIRO: Wedgwood says the court might have a good reason for leaving so many questions unanswered.

Professor WEDGWOOD: At times, I think, wittingly or unwittingly, the court likes to leave a little bit of smoke and mist as to which branch may have the burden of going forward.

SHAPIRO: She says the uncertainty builds in a sense of caution for the other branches, and indeed the U.S. has not detained any new enemy combatants on American soil for a few years now. Harvard Law Professor Jack Goldsmith used to lead the Justice Department's Office of Legal Counsel. He points out that the Justices are not the only ones who can answer these questions.

Professor JACK GOLDSMITH (Harvard Law School): I think the political branches generally are a better place to resolve these issues and I think as a general matter, courts believe that as well.

SHAPIRO: But so far, Congress has not been very aggressive about answering these questions either. Ari Shapiro, NPR News, Washington.

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