What is an Enemy Combatant?

David Mortlock, attorney-adviser at the State Department, takes up this question in his recent blog post at the American Constitution Society and article in the Harvard Law & Policy Review.

Mortlock notes that the courts don't have a settled definition of a detainable person.  He offers one himself: Membership in al Qaeda or the Taliban.  From the blog:

I suggest that Congress has authorized the President to subject members of al Qaeda and the Taliban to military detention, whether or not they engage in combat.  However, the President may not use military detention for mere supporters or sympathizers of those groups.  This membership model could also be used to determine the appropriate time for release.  Namely, detainees could be freed when they sever their membership in al Qaeda or the Taliban.

We most recently posted on the issue here, on the D.C. Circuit's ruling in Bensayah v. Obama.

SDS