Obama DOJ Withdraws ‘Enemy Combatant’ Definition, But Says It Can Hold Prisoners Indefinitely Anyway

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Friday, March 13, 2009 at 4:54 pm

Lawyers and court-watchers have been eagerly waiting to see how the Obama Department of Justice will define an “enemy combatant” — and wondering whether the new administration will continue to insist that the Pentagon has the right to hold people it suspects of assisting al-Qaeda or the Taliban indefinitely without charge or trial.

Well, today we got our answer.

Although the Justice Department says that it is withdrawing the term “enemy combatant” — which, after all, has become a major embarrassment for the United States over the last eight years — it is still maintaining essentially the same authority.

According to a document filed by the Justice Department in the D.C. District Court today, based on the “Authorization for the Use of Military Force (“AUMF”) that Congress passed in 2001, which is “informed by principles of the laws of war”:

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.

The government says it is narrowing the definition the Bush administration had used by saying it now requires “substantial” support for terrorists rather than just any old “insubstantial” support. Still, the president gets to determine exactly who that is.

That’s not exactly what civil liberties advocates had been hoping for.

Here’s Jonathan Hafetz, a lawyer with the American Civil Liberties Union’s National Security Project, on the government’s announcement:

While it is positive that the new administration has re-considered and narrowed the definition of an “enemy combatant,” the new definition is way too broad and, in critical respects, reflects a continuation of the prior administration’s wrongheaded and illegal detention policy.  In particular, it continues to treat terror suspects as a military, rather than criminal justice matter, and to claim the authority to seize and detain individuals captured beyond the battlefield indefinitely and without charges.

And from the Center for Constitutional Rights:

While the new government has abandoned the term “Enemy Combatant,” it appears on first reading that whatever they call those they claim the right to detain, they have adopted almost the same standard the Bush administration used to detain people without charge – with one change, the addition of the word “substantially” before the word “supported.” This is really a case of old wine in new bottles.

I had a feeling this new non-enemy combatant definition wasn’t going to go over so well.

Comments

14 Comments

CaRteR
Comment posted March 13, 2009 @ 2:49 pm

By abandoning this concept and relegating prosecution of terrorists in criminal courts, Obama has given up on the concept of proactively acting to defend national security. Now a person is presumed innocent, and the US must wait for them to commit a crime before detaining and/or trying them. That's how criminal justice works.

If you receive death threats, and you tell the police, even if you are 90% sure who it is there is nothing they can do because, acting inside the civilian criminal justice system they can't proactively arrest people.

But national security doesn't work that way. It's INSANE to wait for a “crime” (read: attack) to be “committed” before doing something about it.


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Chris
Comment posted March 13, 2009 @ 4:51 pm

Right, I don't think they're getting the picture that Congress is now officially given part of the executive's power. While it's not a full step forward. I think it's a substantial (pun intended) step to restoring rule of law.


MasonMcD
Comment posted March 13, 2009 @ 5:05 pm

I really think this is going to be a deliberative process. There may be substantial unintended consequences in unscrambling the egg.

It will happen. Just not in one fell swoop.


Mitch Gore
Comment posted March 13, 2009 @ 5:36 pm

“But national security doesn't work that way. It's INSANE to wait for a “crime” (read: attack) to be “committed” before doing something about it.”

Nonsense. That isn't the issue at all. Conspiracy to commit a crime, even if it is prevented by proactive action (capture, arrest, etc.) by the Government can and must still allow for judicial review. That is a basic concept of our entire body of law and governance. Without it, you have tyranny.

The problem here, is one I have argued for years, in that the 2001 AUMF is an astoundingly sweeping and wholly new idea that allows the President, and President alone sole authority to arrest, attack, kill anything, anyone, anywhere, anytime on his say so alone. Posse Comitatus be damned. How that squares with the basic concepts of our founding documents and principles is baffling to say the least.

It is not just a perversion of our system of checks and balances, the abdication of Congressional war powers, but a complete upending of our entire framework of rule of law.

And for those who think that this is weakening national security, or that Bush policies are the right way to go (or further) do a little thought exercise. For those right of center, imagine the Obama administration having full authority to raid, “disappear” even kill anyone they dislike for say, owning guns, being anti-abortion, etc. and there being no judicial review or oversight. For those left of center, imagine the same thing because targeting groups a GOP President doesn't like, gay-rights groups, environmental groups, anti-war groups, etc.

This is barely a semantics step towards correcting the problem, but those in hysterics that this very timid move towards rule of law is bad, is delusional (at best) in failure to see the very very dangerous ground upon which our system now stands because of the mindless reaction to 9/11.


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Ruth
Comment posted March 13, 2009 @ 10:16 pm

Well, how long do we have to wait before they put Dick Cheney, and George Bush, and half of the Mossad behind bars indefinitely for committing 9/11? How much longer until we all know that 9/11 was an inside job, and we can end this farce?


Hawaiian style
Comment posted March 14, 2009 @ 10:18 am

The more things change the more they stay the same.

We are now going to say we are in a war with terror, but we don't have to comply with the Geneva Conventions and other rules of war because terrorist do not have a nation and so are not soldiers. In other words we are not at war we are just in a war.

And, because there is no end in sight to the “WAR” on terror we will just imprison whom ever the President deems a substantial terrorist FOREVER.

This can't be the last word on this. MY United States has more virtue than this. MY United States Military, the good folks that are facing death and dying must see, in fact know, that this path creates an unending supply of “Substantial enemy combatants.”
,
There was/is more evil in Bagram/Guantanamo than just torture. They are also a Gulag; a political prison where one is held without rights, recourse to justice or a way to dispute one man's idea of “Substantial” danger.

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Hawaiian style
Comment posted March 14, 2009 @ 10:46 am

Preemptive war is great in theory. Unfortunately its the practice that is a problem. Who decides that we should kill those folks (and at the same time our folks) to save us from what someone says is a threat?

The Bush administration is a perfect example of the flaws in Preemptive war.

Look at what Bush and his folks did. They lied to us. They lied to the world. The cowed Congress who should have been the breakwater to stop the tide of their war propaganda. They bullied and convinced us and other nations that Sadam HAD WMD. When that could not be proven have you forgotten all the changes in reasons to go to war, and in why we had to kill him anyway? WMD. Democracy. Regional murderer. He was a bad dangerous man.

If the “decider” has ulterior reasons for starting a preemptive war, (say for oil or politics) how can we trust him/her with our soldiers lives and our nations treasure?


Hawaiianstyle
Comment posted March 14, 2009 @ 5:18 pm

The more things change the more they stay the same.

We are now going to say we are in a war with terror, but we don't have to comply with the Geneva Conventions and other rules of war because terrorist do not have a nation and so are not soldiers. In other words we are not at war we are just in a war.

And, because there is no end in sight to the “WAR” on terror we will just imprison whom ever the President deems a substantial terrorist FOREVER.

This can't be the last word on this. MY United States has more virtue than this. MY United States Military, the good folks that are facing death and dying must see, in fact know, that this path creates an unending supply of “Substantial enemy combatants.”
,
There was/is more evil in Bagram/Guantanamo than just torture. They are also a Gulag; a political prison where one is held without rights, recourse to justice or a way to dispute one man's idea of “Substantial” danger.

AUWE AUWE


Hawaiianstyle
Comment posted March 14, 2009 @ 5:46 pm

Preemptive war is great in theory. Unfortunately its the practice that is a problem. Who decides that we should kill those folks (and at the same time our folks) to save us from what someone says is a threat?

The Bush administration is a perfect example of the flaws in Preemptive war.

Look at what Bush and his folks did. They lied to us. They lied to the world. The cowed Congress who should have been the breakwater to stop the tide of their war propaganda. They bullied and convinced us and other nations that Sadam HAD WMD. When that could not be proven have you forgotten all the changes in reasons to go to war, and in why we had to kill him anyway? WMD. Democracy. Regional murderer. He was a bad dangerous man.

If the “decider” has ulterior reasons for starting a preemptive war, (say for oil or politics) how can we trust him/her with our soldiers lives and our nations treasure?


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