In the 1942
Supreme Court of the United States ruling
Ex Parte Quirin, the Court uses the terms with their historical meanings to distinguish between
unlawful combatants and
lawful combatants:
Johnson v. Eisentrager (1950) reaffirmed the idea that the Constitution does not apply to enemy combatants, and that U.S. courts lack jurisdiction over them. In the wake of the
September 11, 2001 attacks the United States Congress passed a resolution known as the
Authorization for Use of Military Force Against Terrorists (AUMF) on September 14, 2001, wherein the Congress invoked the
War Powers Resolution. Using this authorization granted to him by Congress, on November 13, 2001,
President George W. Bush issued a Presidential Military Order: "
Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism". The administration chose to call those who it detained under the Presidential Military Orders "enemy combatants". The Bush administration began using the term in March 2002. William Lietzau, a legal advisor in the Bush administration first proposed using the term. According to Lietzau, America was detaining people not because they were criminals, but because they were the enemy. While the term was not drawn from the Quirin case, the administration looked to Quirin as validation of the term.
Boumediene v. Bush On June 12, 2008, the
United States Supreme Court ruled, in
Boumediene v. Bush, that the
Military Commissions Act could not remove the right for
Guantanamo captives to access the US Federal Court system. And all previous Guantanamo captives' habeas petitions were eligible to be re-instated. The judges considering the captives' habeas petitions would be considering whether the evidence used to compile the allegations that the detainees were enemy combatants justified a classification of "enemy combatant".
Following the Supreme Court's Boumediene v. Bush ruling On February 20, 2009, the administration of President
Barack Obama sided with the Bush administration's interpretation of law when they argued to bar access to civil courts sought by enemy combatants held at the
Bagram Airfield in
Afghanistan. During a hearing on October 23, 2008,
US District Court Judge Richard J. Leon commented on the ambiguity of the term "enemy combatant".
Farah Stockman, writing in
The Boston Globe, quoted Leon's remarks characterizing him as having
"lashed out" at Congress and the Supreme Court for leaving the term undefined: On October 27, 2008, Leon ruled that the definition of "enemy combatant" he would use was that set forth in the 2004 rules for
Combatant Status Review Tribunals. Defense attorneys for
Lakhdar Boumediene and his fellow
Bosnians of
Algerians descent were pleased with the definition because the DoD had long since dropped the allegation that they had plotted to attack the US Embassy in Sarajevo, and they felt that none of the remaining allegations met Leon's definition. ==Obama presidency abandons the term==