The Murky Legal Ground of the post-9/11 “Enemy Combatant”

An editorial in yesterday’s New York Times brings attention to the fact that, although the Obama administration has fulfilled its promise to close Guantánamo bay, it has appealed a recent Supreme Court ruling that grants habeas corpus to some detainees at a military detention center in Bagram.  For this small subset of non-Afghan detainees, the court found “the process for determining whether a person has been properly labeled an ‘enemy combatant’ even ‘less sophisticated and more error-prone’ than the process the Supreme Court deemed inadequate at Guantánamo” (as quoted in the Times).  That the new administration is contesting this ruling is uncomfortably reminiscent of the sometimes questionable detention policies of the Bush administration (as in now-being-closed Guantánamo – contradictory much?).

The murky legal territory relating to imprisonment of enemy combatants overseas has given rise to numerous worrisome instances of judicial abuses and human rights violations on foreign soil.  But David Mikhail’s recent Boston Review piece reminds us that the post-9/11 detention of so-called “enemy combatants” has had an effect closer to home as well.

In 2001, directly after the September 11 terrorist attacks, Canadian national Shakir Baloch (of Pakistani descent) was detained and held for five months in a Brooklyn-area maximum security prison as part of a federal dragnet that rounded up 762 illegal immigrants.  Upon his release, he was diagnosed with post-traumatic stress disorder and depression.  In the past eight years, his wife has divorced him  and he has found it extremely difficult to hold a job (he is trained as a doctor), due to what he refers to as his “sluggishness” and an inability to concentrate.

Baloch’s case was not even one of the worst casualties of the Bush administration’s military detention policies.  He escaped the indefinite detention of suspects in Guantánamo or the year-long imprisonment and torture of a Canadian engineer who the Bush administration detained and sent to Syria. The wrenching psychological impact that his imprisonment has had on his life, however, is very clear.   Innocent of any crime, he was detained by the U.S. government under circumstances that sound more like the policies of an authoritarian dictatorship than the democratic ideals we tend to associate with our justice system.

Stories relating to the constitutionality of the detention of enemy combatants have become commonplace in the last year or so, but rarely do we actually hear about the impact of “military detention” on an individual level.  Baloch’s case is a symptom of the state of affairs in which “detention of enemy combatants” has become a sort of nondescript buzzword to the general population, passed over in many reports as a sort of vaguely bad policy that is nonetheless vaguely necessary to prevent terrorism.  Zooming in on a case like Baloch’s, though, makes vivid the consequences of the Bush administration’s messily defined but forcefully imposed post-9/11 detention policies.

The closing of Guantánamo, along with last month’s court ruling limiting presidential power to detain people indefinitely with the term “enemy combatant” seem like steps in the right direction, but as long as U.S. policy reserves the right to indefinitely redefine the terms under which it detains potential terrorism suspects, we will continue to run the risk of catastrophically mistreating innocent people like Baloch.