“Enemy Combatants” in American Hands: Are There Limits to the President’s Discretion?

Abstract

This chapter examines the manner in which the United States is dealing with the several hundred people that fell into its hands during the course of Operation Enduring Freedom against Al Quaeda and Taliban forces in Afghanistan, or as a result of separate intelligence activities outside that theatre. On the contrary, the US position is that, for one reason or another, they are all unlawful combatants, a qualification subsequently simplified to combatants. The chapter attempts to influence their actual situation by legal means. It discusses the attempt by the Inter-American Commission on Human Rights (the IACHR or the Commission) to force the hand of the US Government by means of a request for precautionary measures, as well as two habeas corpus cases brought before US federal courts concerning all or some of the Guantanamo detainees.Keywords: enemy combatants; Guantanamo detainees; habeas corpus cases; inter-American commission on human rights (IACHR)