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

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

Thomas Dixon
Last updated: Jul 31, 2020 | Mar 14, 2009

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.

Thomas Dixon | He creates the ideal marketing experience by connecting online brands with their target audiences. He recently completed a research paper on consumer conversion and took part in a community project on SEO optimization. Thomas is working on his Bachelor of Arts in Communications and plans to intern in an online marketing department soon.


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