Editing Unlawful combatant (section)

====1942 Quirin case====
The term ''unlawful combatant'' has been used for the past century in legal literature, military manuals and case law.<ref name="icrc_dorman" /> The term "unlawful combatants" was first used in U.S. municipal law in a 1942 [[United States Supreme Court]] decision in the case ''[[Ex parte Quirin]]''.<ref>[http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0317_0001_ZS.html Ex Parte Quirin -n1- (Nos. 1-7CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA)] or [http://www.agh-attorneys.com/4_ex_parte_quirin.htm Ex Parte Quirin] {{webarchive|url=https://web.archive.org/web/20060223094221/http://www.agh-attorneys.com/4_ex_parte_quirin.htm |date=23 February 2006}} or [http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/quirin.html EX PARTE QUIRIN] {{webarchive|url=https://web.archive.org/web/20051219141121/http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/quirin.html |date=19 December 2005 }}</ref> In that case, the Supreme Court upheld the jurisdiction of a [[Military tribunals in the United States|US military tribunal]] over the trial of eight German [[sabotage|saboteurs]] in the US during [[World War II]]:

{{Blockquote|By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. '''Unlawful combatants''' are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an [[enemy combatant]] who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.}}

The validity of the case as basis for denying prisoners in the [[War on Terrorism]] the protection of the Geneva Conventions has been disputed.<ref>[http://www.prospect.org/print/V13/1/fletcher-g.html War and the Constitution] {{Webarchive|url=https://web.archive.org/web/20060212200408/http://www.prospect.org/print/V13/1/fletcher-g.html |date=12 February 2006 }} by George P. Fletcher in [[The American Prospect]] Issue Date: 1.1.02 or [http://www.law.fsu.edu/faculty/2001-2002workshops/fletcher.pdf War and the Constitution] {{Webarchive|url=https://web.archive.org/web/20060218001844/http://www.law.fsu.edu/faculty/2001-2002workshops/fletcher.pdf |date=18 February 2006 }} and the response [http://www.prospect.org/web/page.ww?section=root&name=ViewWeb&articleId=618 The Military Tribunal Debate] {{Webarchive|url=https://web.archive.org/web/20050428024611/http://www.prospect.org/web/page.ww?section=root&name=ViewWeb&articleId=618 |date=28 April 2005 }}</ref><ref>[https://www.aclu.org/safefree/detention/18471leg20040623.html Revised ACLU Interested Person's Memo Urging Congress to Reject Power to Detain Suspected Terrorists Indefinitely Without Charge, Trial or a Right to Counsel] by the [[American Civil Liberties Union]]</ref><ref>[https://web.archive.org/web/20060508135446/http://www.iap.nl.com/speeches_annual_conference_2003_washington/terrorism_and_the_rule_of_law_speech_by_nicholas_cowdery.html Terrorism and the rule of law] by Nicholas Cowdery AM [[Queen's Counsel|QC]], President, International Association of Prosecutors Director of Public Prosecutions, NSW, [[Australia]], at [[International Association of Prosecutors]] 8th Annual Conference, [[Washington, D.C.]] – 10–14 August 2003.</ref> A report by the American Bar Association on the case commented:

{{Blockquote|The Quirin case, however, does not stand for the proposition that detainees may be held incommunicado and denied access to counsel; the defendants in Quirin were able to seek review and they were represented by counsel. In Quirin, "The question for decision is whether the detention of petitioners for trial by Military Commission... is in conformity with the laws and Constitution of the United States." Quirin, 317 U.S. at 18. Since the Supreme Court has decided that even enemy aliens not lawfully within the United States are entitled to review under the circumstances of Quirin, that right could hardly be denied to U.S. citizens and other persons lawfully present in the United States, especially when held without any charges at all.|American Bar Association<ref>[http://news.findlaw.com/hdocs/docs/aba/abatskforce103rpt.pdf report by the American Bar Association] in PDF</ref>}}

Since the 1942 Quirin case, the US. signed and ratified the 1949 Geneva Conventions, which are therefore considered to be part of US federal law, in accordance with the [[Supremacy Clause]] in the Constitution of the United States.<ref>[[s:Ryuichi Shimoda et al. v. The State#II. Evaluation of the act of bombing according to municipal law]] Paragraph 2</ref> In addition, the [[US Supreme Court]] invalidated the premise, in ''[[Hamdan v. Rumsfeld]]'', by ruling that [[Geneva Conventions#Common Article 3 relating to non-international armed conflict|Common Article Three]] of the Geneva Conventions applies to detainees in the War on Terror and that the [[Guantanamo military commission|Military Commissions]] that were used to try suspects were in violation of U.S. and international law.<ref>[https://web.archive.org/web/20060718003322/http://www.msnbc.msn.com/id/13773997/site/newsweek/ The Gitmo Fallout: The fight over the Hamdan ruling heats up—as fears about its reach escalate.] By Michael Isikoff and Stuart Taylor Jr., Newsweek, 17 July 2006</ref>

Congress addressed the issues in the Military Commissions Act of 2006 so that enemy combatants and unlawful enemy combatants might be tried under military commissions; however, on 12 June 2008, the Supreme Court ruled, in ''[[Boumediene v. Bush]]'', that Guantanamo Bay captives were entitled to access the US justice system and that the military commissions constituted under the Military Commissions Act of 2006 fell short of what was required of a court under the United States constitution (see the section below for more details).