Enemy Combatants

Michael Hayden, former Director of Central Intelligence, pens an Op-Ed in today’s Washington Post arguing that Umar Farouk Abdulmutallab—the underwear bomber—should have been treated as a “Enemy Combatant” rather than a criminal suspect after his capture on Christmas Day. Gen. Hayden’s piece highlights one of the most difficult and contentious issues raised by the on-going conflict between the United States and various militant Islamists organizations.

Strictly speaking, the law that governs international armed conflicts—International Humanitarian Law—admits only two categories of individual: combatants and non-combatants. Combatants can both kill lawfully and be lawfully killed. Additionally, they are immune from prosecution for lawful acts committed while engaging in hostilities. A non-combatant is anyone who isn’t a combatant; non-combatants are not legitimate targets except when they forfeit their immunity by engaging in a hostile act.

So, what is the underwear bomber? He is clearly not a combatant as the term is used in the Law of Armed Conflict: he was not a member of the armed forces of a State or de facto State, he was not openly bearing arms, nor had he distinguished himself from non-combatants with distinctive markings. Indeed, even were he a member of a State’s armed forces, he was engaged in an act of perfidy, forfeiting his combatant status. Yet, if he was a non-combatant he was one engaged in a hostile act. Engaging in a hostile act renders a non-combatant a legitimate target while he’s engaged in that act but not otherwise. If he is a non-combatant, then he is a non-combatant who was taken into custody on U.S. soil, no longer engaged in a hostile act, and should be subject to the civilian criminal justice system, as he has been.

Yet, this answer is unfulfilling. If, as Gen. Hayden describes, Umar Farouk Abdulmutallab is “the tip of the spear of a complex al-Qaeda plot to kill Americans in our homeland,” then it seems woefully insufficient to treat him as a civilian who has temporarily taken up arms and engaged in a hostile act. Perhaps the answer here lies in not slavishly adhering to the criterion that a combatant be a member of the armed forces of a State (or de facto State). But then, as a combatant, wouldn’t the underwear bomber be subject to the protections afforded Prisoners of War? And isn’t this answer just as unfulfilling—somehow extending too much honor to a fundamentally dishonorable bunch?