Enemy Combatant and the Military Commissions Act

Understanding Enemy Combatant Status and the Military Commissions Act

Part 1:  Enemy Combatant Status, No More Pernicious Doctrine

Note: This article was first published in the Summer 2005 edition of The Warrior, the Journal of Gerry Spence's Trial Lawyers College.  This article serves as a short summary of my research and analysis of "enemy combatant status" as it is being used in the so-called war on terrorism.  The recent Military Commissions Act is simply codification of this doctrine - of the ongoing violation of the Bill of Rights that both the executive branch and the judiciary have engaged in for years. As discussed in this article, the sell-out of the Bill of Rights, as a matter of modern constitutional law, happened in 2004, with the Supreme Court's Hamdi decision.  For a more detailed analysis of the history and case-law that has created this very dangerous legal doctrine, please see my full length research paper, Solving the Puzzle of Enemy Combatant Status, which won the 2004 Yale Law School William E. Miller Prize for best paper on the Bill of Rights. -- Stewart Rhodes, U.S. Army Airborne Class of '83

Introduction: No Greater Threat

No greater threat to our Constitution and our Bill of Rights has ever existed than the current doctrine of "Enemy Combatant Status" (also known as "unlawful combatant" status).  This doctrine is like a toxic, poisonous weed that, if not pulled out by the roots, will grow to choke and kill the tree of liberty.  It threatens to wipe out our Bill of Rights and plunge us into a nightmare of military supremacy over the civilian power and unchecked executive rule by decree, where the courts, rather than serving as defenders of liberty, are mere willing administrators of a new Kafkaesque system of indefinite military detention and trial.  We must fight this doctrine or see our freedoms perish, and with them, the last restraints on the U.S. war machine.  To fight it, we must know the facts of its illegitimate birth and silent nurturing at the hands of politicians, generals, government lawyers and complicit judges.  We must be willing to acknowledge that Lincoln, FDR, the New Deal Court, and now even the liberals on the current Court have all been willing midwives to this monstrosity.  As Patrick Henry said, "Whatever anguish of spirit it may cost, [we must be] willing to know the whole truth, to know the worst, and to provide for it."