An Enemy Combatant by Any Other Name...

Jacob Sullum | March 18, 2009

Last week the Obama administration declared it will no longer hold "enemy combatants" at Guantanamo Bay. It will continue to keep people suspected of ties to Al Qaeda or the Taliban in military custody without trial, but it won't call them "enemy combatants," and eventually it will move them to a different prison.

These shifts in nomenclature and location are ripe for mockery, but there may be some substance to them. The administration already has indicated that it will try or release most of the prisoners at Guantanamo, although it is reserving the right to continue indefinitely detaining men it considers too dangerous to release but too difficult to prosecute (because the evidence against them is tainted by coercive interrogations, for example). In papers filed on Friday, the Justice Department says the authority to do that will be based on U.S. statutes and international law, as opposed to a broad reading of executive power (the Bush approach). But in the administration's view, that authority still includes indefinite military detention of people who provide "substantial" support to terrorist groups, no matter what their citizenship or where they are arrested. Here is the ACLU's take:

It is deeply troubling that the Justice Department continues to use an overly broad interpretation of the laws of war that would permit military detention of individuals who were picked up far from an actual battlefield or who didn't engage in hostilities against the United States. Once again, the Obama administration has taken a half-step in the right direction. The Justice Department's filing leaves the door open to modifying the government's position; it is critical that the administration promptly narrow the category for individuals who can be held in military detention so that the U.S. truly comports with the laws of war and rejects the unlawful detention power of the past eight years.

If President Obama is serious about respecting the legislative branch's role in formulating anti-terrorism policy, Congress also can do some modifying and narrowing by taking up issues such as preventive detention and special courts for terrorism suspects. Are such measures justified? If so, under what circumstances? It's better to address these questions directly in public hearings aimed at producing legislation that can be reviewed by the courts, rather than letting the executive branch wing it. 

Last month I noted that the Obama administration was keeping its detention options open.

Comments

|3.18.09 @ 12:48PM|#

I find your lack of Hope® distressing.

CivilLibertarian|3.18.09 @ 12:51PM|#

So much for change.

joe\'s tears taste like ham|3.18.09 @ 12:57PM|#

If you libertards would just have listened super-carefully, you wouldn't have this bogus charge of hypocrisy. Obama said:

All of you should Hope for a different sort of politician and settle for a Change in semantics.

Joe|3.18.09 @ 1:07PM|#

This is "Change we can believe in" (TM)

Abdul|3.18.09 @ 1:10PM|#

I have to defend Obama a little bit here. under Bush, the DOJ's primary argument was that the USA could hold detainees as EC's under Executive Authority alone. However, the DOJ also referred to a secondary argument that the USA was also empowered under the AUMF to hold these same guys.

Obama has gone to the the backup argument. this means that if Congress repeals the AUMF, the authority to hold detainees also disappears.

While the de facto difference isn't all that great, the deference to Congress is a big difference.

|3.18.09 @ 1:16PM|#

These shifts in nomenclature and location are ripe for mockery,

Yes. Yes, they are.

but there may be some substance to them

Don't forget to apply RC'z Rule of May:

there may or may not be some substance to them

And on the may not side:

The administration already has indicated that it will try or release most of the prisoners at Guantanamo, although it is reserving the right to continue indefinitely detaining men it considers too dangerous to release but too difficult to prosecute (because the evidence against them is tainted by coercive interrogations, for example).

Note that the exception may, and likely will, largely consume the rule. And don't you love the irony that this sets up indefinite detention of people subjected to [some values of] torture, because they were tortured? That's some good ethics, there.

TofuSushi|3.18.09 @ 1:18PM|#

These shifts in nomenclature and location are ripe for mockery, but there may be some substance to them.

Some substance? Come on Jacob! Obama completly changed the definitions. COMPLETLY!

We no longer have enemy combatants and we will soon be political prisoner free, just you wait and see.

|3.18.09 @ 1:48PM|#

We no longer have enemy combatants and we will soon be political prisoner free, just you wait and see.

The best part of performance art is not being sure about the put-on. I don't want to know. You're killing me.

|3.18.09 @ 2:05PM|#

In between campaign stops, I am sure Obama will soon solve War by renaming it Peace.

|3.18.09 @ 2:24PM|#

we will soon be political prisoner free

Who is being held as a political prisoner now?

jtuf|3.18.09 @ 2:35PM|#

Sigh, well it's a step in the right direction. I have a feeling we'll never get back to respecting habeas corpus. Now that the democrates are in charge, I doubt there will be any protests over government abuses.

|3.18.09 @ 3:52PM|#

Sigh, well it's a step in the right direction.

Maybe, jtuf. You could drive an Airbus full of detainees through those loopholes. Call this one "wait and see."

Although, when dealing with indefinite detention, at some point the clock on "wait and see" will run out.

Dr. Evil|3.18.09 @ 11:49PM|#

I will call him... mini combatant!

|3.19.09 @ 7:02AM|#

Maybe they could just be considered to be "troubled youth", and given "green jobs" in California...