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Posted on April 19th, 2012, by

Traditionally, the USA is considered to be a democratic country where human rights are protected and people cannot be detained indefinitely. However, the latter issue has provoked a number of heat discussions in the context of the Hamdi vs, Rumsfeld case, which actually changed the traditional rule and principle of the detainment to the extent that an enemy combatant can be potentially detained indefinitely and such a detainment can be considered lawful.

At the same time, it is necessary to take into consideration the fact that such a detention can be considered lawful only on the condition that the detained enemy combatant is unlawful, while the American citizens must have the ability to challenge their detention before an impartial judge.

On analyzing the rule of the Hamdi vs. Rumsfeld case, it should be said that it is necessary to take into consideration the context in which the decision was taken in order to understand its significance in regard to the detention of enemy combatants and its impact on human rights. At first glance, it seems to be obvious that the decision allowing detaining enemy combatant indefinitely is unlawful and violates basic human rights. In terms of the existing legislation, such detention is impossible because an individual cannot be detained without legal charges and, what is more, detained for indefinite period of time. However, this rule is applicable to ordinary citizens as well as non-citizens of the USA.

At the same time, it should be said that the Hamdi vs. Rumsfeld case deals with enemy combatant, which apparently should be treated in a different way compared to civilians. Moreover, it is important to lay emphasis on the fact that the rule of the Hamdi vs. Rumsfeld case refers only to the unlawful enemy combatants. This means that it is impossible to detain an enemy combatant if he is a soldier of an enemy army, while the specification that it is only unlawful enemy combatants are susceptible to the indefinite detention is very important because it indicates to the fact that it is only combatants that are not members of the regular army of an enemy that can be detained in accordance to the Hamdi vs. Rumsfeld rule. At this point, it should be sad that this decision could be justified by the new problem the US army faced in its military operations as well as the US national security also became vulnerable to attacks from the part of terrorists. In fact, the term “unlawful enemy combatant”¯ apparently designates a terrorist which participated in military operations or terrorist activities which were illegal and threatened to the US citizens or to the national security of the USA.

Moreover, it is important to remember about the fact that the Hamdi vs. Rumsfeld rule protects the US citizens even if they are unlawful enemy combatants. In other words, even if they are involved in such illegal activities, including terrorism, American citizens are in a privileged position compared to foreigners and they have an opportunity and ability to protect their basic human rights and to challenge their detention before an impartial judge.

In such a way, it is only unlawful enemy combatant, non-citizen of the US that can be detained indefinitely according to Hamdi vs. Rumsfeld.

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