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:

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.

No Comment, Six Questions June 4, 2014, 8:00 am

Uncovering the Cover Ups: Death Camp in Delta

Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp

From the June 2014 issue

The Guantánamo “Suicides,” Revisited

A missing document suggests a possible CIA cover-up

Get access to 164 years of
Harper’s for only $39.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

November 2014

Stop Hillary!

= Subscribers only.
Sign in here.
Subscribe here.

How the Islamic State was Won

= Subscribers only.
Sign in here.
Subscribe here.

Cage Wars

= Subscribers only.
Sign in here.
Subscribe here.

Everyday Grace

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
Stop Hillary!·

= Subscribers only.
Sign in here.
Subscribe here.

"What Hillary will deliver, then, is more of the same. And that shouldn’t surprise us."
Photograph by Joe Raedle
Article
Cage Wars·

= Subscribers only.
Sign in here.
Subscribe here.

"In the 1970s, “Chickens’ Lib” was a handful of women in flower-print dresses holding signs, but in the past decade farm hens have become almost a national preoccupation."
Photograph by Adam Dickerson/Big Dutchman USA, courtesy Vande Bunte Farms
Article
Paradise Lost·

= Subscribers only.
Sign in here.
Subscribe here.

"Suffering Sappho! Here we still are, marching right into yet another century with our glass ceilings, unequal pay, unresolved work and child-care balance, and still marrying, forever marrying, men."
Illustration by Anthony Lister
Article
Off the Land·

= Subscribers only.
Sign in here.
Subscribe here.

"Nearly half the reservation lives below the poverty line, with unemployment as high as 60 percent, little to no infrastructure, few entitlements, a safety net that never was, no industry to speak of, and a housing crisis that has been dire not for five years but since the reservation’s founding in 1855."
Illustration by Stan Fellows
Post
Introducing the November 2014 Issue·

= Subscribers only.
Sign in here.
Subscribe here.

Doug Henwood on stopping Hillary Clinton, fighters and potential recruits discuss the rise of the Islamic State, the inevitability of factory farming, and more

Cover photo by Reuters/Jonathan Ernst

Number of countries thought to possess chemical weapons:

14–16

Placebos are more effective if the drugs for which they stand in are said to be more expensive.

In Torrance, California, an African grey parrot named Nigel, who once spoke English with a British accent and had returned home after a four-year absence, began asking for someone named “Larry” and speaking Spanish.

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

HARPER’S FINEST

In Praise of Idleness

By

I hope that after reading the following pages the leaders of the Y. M. C. A. will start a campaign to induce good young men to do nothing. If so, I shall not have lived in vain.

Subscribe Today