In an attempt to clarify the government’s detention authority over some 200+ current Guantanamo Bay detainees, the U.S. Department of Justice (DOJ) has distanced itself from the politically loaded term “enemy combatant.” Headlines on Friday (the 13th) trumpeted that the Obama administration had eliminated and retired the term “enemy combatant,” that the term was being jettisoned from the legal framework for such detentions, and that a new legal standard was being erected in its place. These headlines seemed to promise a strange, new legal world in which the old administration’s legal jargon was being tossed out with the old administration.
Expecting a strongly worded condemnation of the previous label and anticipating a more clear statement of the United States’ policy on dealing with terrorists or would-be terrorists or supporters-of-terrorists — or even the-guy-who-cuts-the-terrorists-hair, likely covered by the broad definition of “enemy combatant” as previously applied — I eagerly searched for and reviewed the legal memorandum submitted on Friday by the DOJ to the U.S. District Court for the District of Columbia in the In re: Guantanamo Bay Litigation case.
Nothing. Not one single mention of “enemy combatants.”
I must admit it was a bit of a legal letdown. There was no vicious verbal battle for human rights and the rule of law occurring on the pages of this document. Where was the blood, the gore, the carnage? Like a child who believes that the monsters will go away if he shuts his eyes tightly and ignores the hands closing around his ankles, the DOJ seems to believe that by choosing not to use the term “enemy combatant” at all, it too will go away.
The DOJ reiterated the language of Congress’s Authorization for the Use of Military Force (AUMF) passed in 2001 by stating that the President could detain those he “determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks [as well as] 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.” [Emphasis Added] The DOJ also explicitly rejected any definition that would limit the President’s detention power only to “those ‘directly participating in hostilities,'” as such a limitation would jeopardize national security by unduly rewarding enemy armed forces that caused harm indirectly.
Essentially, the nature of the president’s detention power has not changed. Granted, the DOJ did state that this detention power did not “justify the [current] detention at Guantanamo Bay of those who provide unwitting or insignificant support” to organizations like the Taliban; but the DOJ declined to make any further assertions about the meaning of phrases like “substantially supported,” which it argues will need to be examined on a case-by-case basis. Further, the DOJ intentionally limits even this distinction “to the authority upon which the Government is relying to detain the persons now being held at Guantanamo Bay [,]” emphasizing that it “is not [. . .] meant to define the contours of authority for military operations generally, or detention in other contexts.” In plain English — this distinction is not meant to be proscriptive or a definitive statement of the Obama administration’s position on detention.
The most significant action by the DOJ in this memorandum seems to be its assertion that the President’s power to detain enemy forces is grounded in Congress’s AUMF and developing international law — instead of in the Executive’s “inherent” constitutional wartime power as claimed by the Bush administration. By stating that the power to detain originates with Congress, this administration chooses to base the government’s actions in Article I, Section 8 of the U.S. Constitution which states that “[t]he Congress shall have Power [. . .] [t]o declare War, [. . .] and make Rules concerning Captures on Land and Water.” The extensive discussion of the proper source of the Presidential detention power undertaken by the DOJ in this memorandum signals a desire by the current administration to disassociate with the more controversial legal positions advocated by the previous administration in relation to the proper response to terrorism and the 9/11 attacks. Still at issue is the applicable scope of this power to detain and the rights that will be afforded to those who are detained.
At most, this represents a slow transition in policy that takes into consideration the needs of national security, the principles of American constitutional law, and the myriad foreign policy implications of each decision made by our government in its efforts to deal with terrorism.
A symbolic shift in name may be better than no shift at all.