No Comment — March 14, 2009, 12:31 pm

Enemy Combatant, Rest in Peace?

Among George W. Bush’s controversial legal maneuvers was a repackaging of the notion of “enemy combatant.” If the President determined a person was an “enemy combatant,” the Bush Justice lawyers reasoned, he could be seized and imprisoned indefinitely with no right to a lawyer, to be confronted with charges or to present his case to a court. The President’s determination was the beginning and the end, and the rule first adopted at Runnymede in 1215, under which a person could only be deprived of his freedom by operation of law, was thus declared quaint and obsolete. During the campaign, Barack Obama pledged to overturn this abuse. Has he? The Obama Administration announced today that it was no longer using the Bush Administration’s concept of “enemy combatant.” Said Attorney General Eric Holder:

As we work towards developing a new policy to govern detainees, it is essential that we operate in a manner that strengthens our national security, is consistent with our values, and is governed by law. The change we’ve made today meets each of those standards and will make our nation stronger.

But the Obama Administration’s position is much less than meets the eye. It continues to reserve broad discretion for the President to hold combatants outside of the protections afforded by the criminal justice system. Here’s the key paragraph from the brief that the Obama Justice Department filed today:

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or Al Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.

Deborah Pearlstein furnishes a good summary of the differences between the new Obama and the old Bush positions:

(1) The President’s authority to hold the detainees flows not from some inherent constitutional authority, but by the statute passed by Congress in the wake of September 11, 2001 – the Authorization for the Use of Military Force (AUMF). The first sentence of the definition above is essentially verbatim a recitation of that statute. (2) The meaning (and limits) of the AUMF is, as the administration brief explains repeatedly, “necessarily informed by principles of the laws of war.” That is, international law matters in interpreting the scope of this domestic law. It is possible that the Bush administration said as much on occasion (can anyone cite an example?). But its reading of international law generally (and international humanitarian law in particular) was so idiosyncratic that it was hard to take such statements seriously. (3) As the DOJ’s press release statement notes, the brief doesn’t use the term “enemy combatant” so it’s no longer meaningful/ relevant to the legal discussion. (4) As the brief also says, its statement of the standard here may be subject to further refinement following the completion of its ongoing task force review of detention policy and standards.

These are subtle distinctions, but they do reflect a reversion to more traditional legal interpretations. They are also sure to disappoint civil libertarians, who were looking for a far more aggressive rollback of the Bush standards. Here’s Michael Ratner of the Center for Constitutional Rights:

Again, as with Bush the Obama administration is applying the laws of international armed conflict (the laws of war) to the Taliban, Al Qaeda and associated forces when those laws have no application to those entities in the current situation. Again as the Bushies did they are conflating the right to use force against terrorists with a claim that they can be held forever without trial. The laws of war contain no such authority. Again, they are claiming the right to capture and detain people anywhere in the world—the world is still a battlefield according to Obama. So, the “global war on terror” continues.

The Justice Department’s posture is much less than I was hoping for, but the legal turf it stakes out strikes me as potentially palatable. I am still skeptical. These concepts might be wielded in an abusive way, as the Bush “enemy combatant” concept clearly was. It will be important to monitor the Obama Administration’s interagency review process and see how these new concepts are actually applied to the detainees. Give the positively abysmal track-record of the Justice Department, a heavy measure of skepticism is well justified.

Share
Single Page

More from Scott Horton:

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

From the April 2015 issue

Company Men

Torture, treachery, and the CIA

Six Questions October 18, 2014, 8:00 pm

The APA Grapples with Its Torture Demons: Six Questions for Nathaniel Raymond

Nathaniel Raymond on CIA interrogation techniques.

Get access to 165 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

September 2015

Tremendous Machine

= Subscribers only.
Sign in here.
Subscribe here.

A Goose in a Dress

= Subscribers only.
Sign in here.
Subscribe here.

The Genealogy of Orals

= Subscribers only.
Sign in here.
Subscribe here.

The Neoliberal Arts

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
New Television·

= Subscribers only.
Sign in here.
Subscribe here.

“In Season 5 of Louie (FX), Louie is a new kind of superhero. Like Wonder Woman, the canonical superhero he most resembles, Louie’s distinctive superpower is love.”
Illustration by Demetrios Psillos
Article
Romancing Kano·

= Subscribers only.
Sign in here.
Subscribe here.

On a Friday evening in January, a thousand people at the annual California Native Plant Society conference in San Jose settled down to a banquet and a keynote speech delivered by an environmental historian named Jared Farmer. His chosen topic was the eucalyptus tree and its role in California’s ecology and history. The address did not go well. Eucalyptus is not a native plant but a Victorian import from Australia. In the eyes of those gathered at the San Jose DoubleTree, it qualified as “invasive,” “exotic,” “alien” — all dirty words to this crowd, who were therefore convinced that the tree was dangerously combustible, unfriendly to birds, and excessively greedy in competing for water with honest native species.

In his speech, Farmer dutifully highlighted these ugly attributes, but also quoted a few more positive remarks made by others over the years. This was a reckless move. A reference to the tree as “indigenously Californian” elicited an abusive roar, as did an observation that without the aromatic import, the state would be like a “home without its mother.” Thereafter, the mild-mannered speaker was continually interrupted by boos, groans, and exasperated gasps. Only when he mentioned the longhorn beetle, a species imported (illegally) from Australia during the 1990s with the specific aim of killing the eucalyptus, did he earn a resounding cheer.

Article
The Prisoner of Sex·

= Subscribers only.
Sign in here.
Subscribe here.

“It is disappointing that parts of Purity read as though Franzen urgently wanted to telegraph a message to anyone who would defend his fiction from charges of chauvinism: ‘No, you’ve got me wrong. I really am sexist.’”
Illustration by Shonagh Rae
Article
Gangs of Karachi·

= Subscribers only.
Sign in here.
Subscribe here.

“In Karachi, sometimes only the thinnest of polite fictions separates the politicians from the men who kill and extort on their behalf.”
Photograph © Asim Rafiqui/NOOR Images
Article
Weed Whackers·

= Subscribers only.
Sign in here.
Subscribe here.

“Defining 'native' and 'invasive' in an ever-shifting natural world poses some problems. The camel, after all, is native to North America, though it went extinct here 8,000 years ago, while the sacrosanct redwood tree is invasive, having snuck in at some point in the past 65 million years.”
Photograph by Chad Ress

Percentage of Britons who cannot name the city that provides the setting for the musical Chicago:

65

An Australian entrepreneur was selling oysters raised in tanks laced with Viagra.

A tourism company in Australia announced a service that will allow users to take the “world’s biggest selfies,” and a Texas man accidentally killed himself while trying to pose for a selfie with a handgun.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Subways Are for Sleeping

By

“Shelby is waiting for something. He himself does not know what it is. When it comes he will either go back into the world from which he came, or sink out of sight in the morass of alcoholism or despair that has engulfed other vagrants.”

Subscribe Today