Editing Unlawful combatant (section)

==== 2001 Presidential military order ====
In the wake of the [[September 11, 2001 attacks]], the US Congress passed a resolution known as the ''[[Authorization for Use of Military Force Against Terrorists|Authorization for Use of Military Force]]'' (AUMF) on 18 September 2001. In this, Congress invoked the [[War Powers Resolution]] and stated:

<blockquote>That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on 11 September 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.<ref>US Congress' joint resolution of 18 September 2001 [http://news.findlaw.com/wp/docs/terrorism/sjres23.es.html Authorization for Use of Military Force ("AUMF")]; public law 107-40, 115 Stat. 224</ref></blockquote>

Using the authorization granted to him by Congress, on 13 November 2001, [[George W. Bush|President Bush]] issued a Presidential Military Order: "[[Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism]]"<ref>President George W. Bush's Military Order of 13 November 2001: [https://georgewbush-whitehouse.archives.gov/news/releases/2001/11/print/20011113-27.html Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism]; 66 FR 57833 [http://www.law.uchicago.edu/tribunals/exec_order.html backup site] {{Webarchive|url=https://web.archive.org/web/20030404073150/http://www.law.uchicago.edu/tribunals/exec_order.html |date=4 April 2003 }}</ref> which allowed "individuals ... to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by [[Combatant Status Review Tribunal|military tribunals]]", where such individuals are members of the organization known as al Qa'ida; or has conspired or committed acts of international terrorism, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy. The order also specifies that the detainees are to be treated humanely.

The length of time for which a detention of such individuals can continue before being tried by a military tribunal is not specified in the military order. The military order uses the term "detainees" to describe the individuals detained under the military order. The U.S. administration chooses to describe the detainees held under the military order as "'''illegal enemy combatants'''".

US Secretary of Defense announced Guantanamo Bay detainees would be held as illegal enemy combatants instead of prisoners of war, permitting lack of compliance with the Geneva Conventions. The Bush administration maintained that the terrorists aren’t prisoners of war due to the distinction between unlawful combatant and lawful combatant. Despite this, the administration held that the detainees would be treated in compliance with the Geneva Convention.<ref>{{Cite journal |last=Vierucci |first=Luisa |date=1 August 2003 |title=Prisoners of War or Protected Persons qua Unlawful Combatants? The Judicial Safeguards to which Guantanamo Bay Detainees are Entitled |url=https://academic.oup.com/jicj/article-lookup/doi/10.1093/jicj/1.2.284 |access-date=2022-11-15 |journal=Journal of International Criminal Justice |volume=1 |issue=2 |pages=284–314 |doi=10.1093/jicj/1.2.284}}</ref><ref>{{Citation |last=Rabkin |first=Jeremy |title=After Guantanamo: The War Over the Geneva Convention |url=https://www.taylorfrancis.com/chapters/edit/10.4324/9781351323642-8/guantanamo-war-geneva-convention-jeremy-rabkin |work=The National Interest on International Law and Order |year=2018 |pages=63–76 |doi=10.4324/9781351323642-8 |isbn=9781351323642 |access-date=2022-11-15}}</ref>

With the [[War in Afghanistan (2001–2021)|U.S. invasion of Afghanistan]], some lawyers in the [[United States Department of Justice|Justice Department]]'s Office of Legal Counsel and in the office of [[White House]] counsel [[Alberto Gonzales]] advised President Bush that he did not have to comply with the Geneva Conventions in handling detainees in the War on Terrorism. This applied not only to members of al Qa'ida but the entire [[Taliban]], because, they argued, Afghanistan was a "failed state".<ref>[http://www.newyorker.com/printables/fact/050214fa_fact6 Outsourcing torture: The secret history of America's "extraordinary rendition" program] by [[Jane Mayer]] [[The New Yorker]] Issue of 2005-02-14 Posted 2005-02-07 Paragraph 32</ref>

Despite opposition from the U.S. [[State Department]], which warned against ignoring the Geneva Conventions, the [[George W. Bush administration|Bush administration]] thenceforth began holding such individuals captured in Afghanistan under the military order and not under the usual conditions of Prisoners of War.<ref>[http://www.newyorker.com/magazine/2005/02/14/outsourcing-torture Outsourcing torture: The secret history of America's "extraordinary rendition" program] by Jane Mayer The New Yorker Issue of 2005-02-14 Posted 2005-02-07 Paragraph 34</ref> For those U.S. citizens detained under the military order, U.S. officials, such as Vice President [[Dick Cheney]], argue that the urgency of the post-9/11 environment called for such tactics in administration's war against terrorism.

Most of the individuals detained by the U.S. military on the orders of the U.S. administration were initially captured in Afghanistan. The foreign detainees are held in the [[Guantanamo Bay detention camp]] established for the purpose at the [[Guantanamo Bay Naval Base]], [[Cuba]]. Guantanamo was chosen because, although it is under the ''de facto'' control of the United States administration, it is not a [[sovereignty|sovereign territory]] of the United States, and a previous Supreme Court ruling ''[[Johnson v. Eisentrager]]'' in 1950 had ruled that U.S. courts had no jurisdiction over enemy aliens held outside the USA.

In ''[[Rasul v. Bush]]'', the Supreme Court ruled that "the U.S. Guantanamo Bay, Cuba, Naval Base, which the United States occupies under a lease and treaty recognizing Cuba's ultimate sovereignty, but giving this country complete jurisdiction and control for so long as it does not abandon the leased areas",<ref>[http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-334 Rasul et al. v. Bush, President of the United States])</ref> and that as the United States had complete jurisdiction, the federal courts have the authority under the federal ''habeas corpus'' statute to decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay were rightfully imprisoned. This ruling largely overturned the judicial advantage for the U.S. administration of using the Naval Base that ''Johnson v. Eisentrager'' seemed to have conferred.