In fact, captured terrorists went out of style a long time ago, so that’s not the actual change. Until recently — like, say, two weeks ago — the Department of Defense used the term unlawful combatant as the label for terrorists captured by American military and intelligence forces as a way to distinguish them from uniformed soldiers of a recognized state authority in a straight-up fight. Their new manual dispenses with that term, the Federation of American Scientists noticed today (via Steven Aftergood and Olivier Knox):
When it comes to Department of Defense doctrine on military treatment of detained persons, “unlawful enemy combatants” are a thing of the past. That term has been retired and replaced by “unprivileged enemy belligerents” in a new revision of Joint Publication 3-13 on Detainee Operations, dated November 13, 2014.
The manual even has this helpful chart for readers:
The only actual mention of the previous term comes in the Summary of Changes on page iii, which notes that the revision “[r]evises terminology, taxonomy, and definitions for unlawful enemy combatant, unprivileged belligerent, detainee, and detainee operations.” There is no particular explanation for why unlawful combatant no longer suffices, or why “unprivileged” makes for a clearer understanding between the categories of legitimate POW and everyone else.
So what’s going on here? Political correctness run amok, like saying there’s no such thing as an unlawful person? A way to reinforce the idea of “privilege”? No, not really — or at least not on the DoD’s behalf. If anyone’s to blame for the blandification of nomenclature … it’s Congress. The new revision to the DoD manual brings the terminology in line with 10 U.S. Code § 948a, which provides definitions for detainee policies rewritten by Congress to refine the military-commission process. It provides a very precise definition of the two classes of belligerents:
(6) Privileged belligerent.— The term “privileged belligerent” means an individual belonging to one of the eight categories enumerated in Article 4 of the Geneva Convention Relative to the Treatment of Prisoners of War.
(7) Unprivileged enemy belligerent.— The term “unprivileged enemy belligerent” means an individual (other than a privileged belligerent) who—
(A) has engaged in hostilities against the United States or its coalition partners;
(B) has purposefully and materially supported hostilities against the United States or its coalition partners; or
(C) was a part of al Qaeda at the time of the alleged offense under this chapter.
This section goes back to the Military Commissions Act of 2006, sponsored by Mitch McConnell, but the new terms were introduced in the 111th Congress in the NDAA for 2009. It passed in October 2009 and was signed a few days later by President Obama. The only contemporaneous discussion of this change I could find in a quick search was by Joanne Mariner at Findlaw, who dismissed it as “cosmetic.” Another change was somewhat more substantial:
The new law begins by tweaking the definition of individuals eligible for trial before military commissions — most obviously by scrapping the phrase “unlawful enemy combatant,” and replacing it with “unprivileged enemy belligerent.” This is a cosmetic change, not a real improvement, which mirrors the administration’s decision to drop the enemy combatant formula in habeas litigation at Guantanamo Bay.
In addition, the new definition sets out three separate grounds on which a person might be deemed an “unprivileged enemy belligerent,” which vary somewhat from the grounds for eligibility included in the previous definition. The third ground, now separate from the previous two, is membership in Al Qaeda, whether or not the member has engaged in or supported hostilities against the US. (Under the previous definition, membership in “Al Qaeda, the Taliban, or associated forces” was relevant to the determination of whether a person had engaged in or supported hostilities, but was not itself a distinct ground for eligibility.)
Notably, the Taliban is no longer specifically named in the new definition. This suggests, perhaps, that the administration is acknowledging a meaningful difference between the Taliban and Al Qaeda, and wants to leave open, at least for the future, the possibility that the Taliban is not the enemy.
That might seem a little more notable in the wake of the Bowe Bergdahl swap. It’s possible that this could provide the White House a way to press for the release of more Taliban detainees from Guantanamo Bay, but it would be a tendentious and silly argument. Publicly, the administration has argued that the risk from their release has disappeared by now, which is their main and most effective argument, even if experience has clearly proven it to be untrue — which we’ve known for years.
At any rate, the new nomenclature seems pretty silly, and the need to change from unlawful combatant non-existent. Don’t blame the Department of Defense for it, although we can certainly wonder why it took them five years to catch up to the changes (and what may have prompted the recent action). That silliness comes from one of America’s great resources of silliness and meaningless redefinitions of perfectly suitable language — from your elected officials on Capitol Hill. On the plus side, we can now ask terrorists to check their unprivilege as they enter the detention system, or something.