Law School Faculty Blog
9Jan/14

The Real Origin of the Term ‘Enemy Combatant’

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For over a dozen years, since the attacks on 9/11, a new and pernicious term has permeated the war lexicon and the mainstream: enemy combatant. Although originally intended as the United States' designation for al Qaeda and Taliban captives, it is now often indiscriminately applied to alleged terrorists throughout the world. In 2009, President Obama abandoned the term, substituting language more consistent with the Geneva Conventions. However, the term enemy combatant is still on Americans' radar screens.

Many scholars of international law believe that the U.S. deliberately invented the term in order to circumvent the protections of the Geneva Conventions (GC). Under the GC, the universe of combatants are two: lawful (also called prisoners of war) and unlawful.

The International Committee of the Red Cross/Red Crescent—whose humanitarian mission is to protect people in armed conflicts from cruel, inhuman, and degrading treatment as well as torture, and which bases its principles on the GC—does not recognize the term enemy combatant as legitimate. Many scholars believe that by labeling captives enemy combatants, the Bush administration could claim that the GC did not cover the detainees, and thus the U.S. could mistreat and torture detainees with impunity.

If you had asked members of the Bush administration for the origination of the term, they would tell you that it was not invented, and that it was a legitimate term. They would point to a 1942 Supreme Court case, Ex parte Quirin, that uses the term enemy combatant interchangeably with several other terms such as unlawful combatant and unlawful belligerent. However, as our Witness to Guantanamo project recently discovered, Quirin was not the source of the term. In fact there was no legal foundation for the term.

Rather, it was William Lietzau, a mid-level legal advisor, who first proposed using the term. And, at the time, it had nothing to do with Quirin.

Lietzau, then a Marine in uniform, was assigned to the Pentagon, following the attacks on September 11, 2001, as Special Adviser to the General Counsel in the Office of the Secretary of Defense. Lietzau was an expert on international law and the law of war. The Bush administration called on Lietzau to develop the rules for Military Commissions that the administration planned to use to prosecute al Qaeda and Taliban captives.

As Lietzau explained, the term enemy combatant became the term of choice during a practice session to prepare Paul Wolfowitz, then Deputy Secretary of Defense, for his appearance on the MacNeil-Lehrer News Hour in March 2002. During the session, someone asked Wolfowitz how the detainees could have fair trials if the president had, in various memos and statements, already declared the detainees to be unlawful combatants.

Lietzau suggested that Wolfowitz use the term unlawful combatant less frequently. He noted that unlawful combatant (the term used since November 2001) caused confusion because it implied a pre-judgment of the detainee's guilt, even though the term did not mean that. As Lietzau explained to us, America was holding people not because they were criminals, but because they were the enemy. As he saw it, someone could be tried for a war crime, acquitted, and still held until the end of hostilities as the enemy.

Wolfowitz asked Lietzau whether there was another term that he could use. Lietzau answered that perhaps he should use enemy combatant because it then designates them with the appropriate adjective to describe why we're holding them. We're holding them because they're the enemy not because they've done something unlawful. A lawful combatant or an unlawful combatant can be held just as well.

After the session, Lietzau went to Deputy General Counsel for International Affairs, Chuck Allen, and to General Counsel to the Department of Defense, Jim Haynes, and asked them whether it was "okay." Lietzau told us, "Everyone was fine with it [and] they found it in Quirin. And that became the term that was then used."

In essence, the administration's pointing to Quirin as both the origin and the justification for the use of the term enemy combatant, happened after the term was adopted. Quirin was a post hoc rationalization. In his interview, Lietzau added, "I'd like to say I was so well-versed in Quirin that I pulled it directly from the case, but no. It was logic. It was the English language. I was thinking in terms of what the American people would understand."

Lietzau had no intention of imbuing the term with the destructive power it assumed. Indeed, Lietzau stated "that no one involved in the terminology change ever intended that it be so imbued." To Lietzau, enemy combatant was a descriptive term.

Of course, the principle of unintended consequences informs the term enemy combatant. Although Lietzau only intended to suggest a more logical and descriptive term, the term arguably has taken on a life on its own, creating a new category of combatants outside the GC framework. Without protections of the GC, "enemy combatants" have been cruelly treated, isolated, sensory-deprived, and tortured for over a dozen years.

The adoption of the term by the administration, without thinking through the consequences, caused great harm to thousands of people designated as enemy combatants.

Paul Wolfowitz appeared on the MacNeil-Lehrer News Hour on March 21, 2002. He described the detainees as "enemy combatants seized in a war, a war on terrorism." That same day, Jim Haynes said in a Pentagon briefing, "we may hold enemy combatants for the duration of the conflict." These were the first times that members of the administration officially referred to the captured detainees as enemy combatants.

I have spent over 12 years searching for the person who suggested that the term enemy combatant be adopted by the Bush administration. Now I know. The rest is dismal history.

Originally posted on Huffington Post Politics Blog

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