They're not 'enemy combatants' anymore, but Obama will still detain them without charges

March 16, 12:11 PMCivil Liberties ExaminerJ.D. Tuccille

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President Obama isn't George W. Bush -- Bush wasn't
this cynical. (AP Photo/Pablo Martinez Monsivais)

They're not called "enemy combatants" anymore, but that may be the Obama administration's only real change in policy with regards to military detainees. Whatever they're called, anybody said by the U.S. government to give "substantial" support to al Qaeda or the Taliban will still be held without charges or a trial in which American authorities have to prove their accusations.

Rather than rejecting the Bush administration's ill-conceived notion of a 'war on terror,' the Obama administration's position on detainees has merely tinkered with its form."
--Human Rights Watch

In a statement accompanying a filing with the federal district court for the District of Columbia, administration officials said:

[T]he Department of Justice submitted a new standard for the government’s authority to hold detainees at the Guantanamo Bay Detention Facility. The definition does not rely on the President’s authority as Commander-in-Chief independent of Congress’s specific authorization. It draws on the international laws of war to inform the statutory authority conferred by Congress. It provides that individuals who supported al Qaeda or the Taliban are detainable only if the support was substantial. And it does not employ the phrase "enemy combatant."

Essentially, then, the administration is dropping a single bit of terminology, retaining the previous administration's claim to have a right to hold people seized around the world without charges, and shifting the basis of its assertion of that authority from a nebulous appeal to executive authority to a tendentious interpretation of congressional actions as viewed through an equally questionable spin on international law.

In the formal document filed with the court, Respondents’ Memorandum Regarding the Government's Detention Authority Relative to Detainees Held at Guantanamo Bay (PDF), the Justice department argues that habeas corpus petitions by detainees should be viewed in light of the administration's position regarding suspected terrorists:

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 problem, of course, is that, in the absence of specific charges and trials, the government never has to prove its claims that the people it locks up ever truly "engaged in hostilities against the United States." It simply makes assertions against people it doesn't like and locks the cell door.

This position is essentially indistinguishable from the one taken by the Bush administration. In the memorandum, Obama administration officials cite the same precedents (Ex parte Quirin) dredged up by their predecessors.

In fact, the old Bush position still applies beyond the gates of Guantanamo. As Lyle Denniston, writing for SCOTUSBlog, notes:

The memorandum expressly noted that the new definition would only apply to individuals now held at Guantanamo Bay.  That leaves out, among other detention sites, the U.S. military jail operated at Bagram airbase in Afghanistan. Earlier, the Obama Administration told Judge Bates that it was not changing the Bush Administration view that the Bagram detainees have no rights to challenge their captivity there.

No wonder Anthony D. Romero, executive director of the ACLU, responded, "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."

Human Rights Watch objects, "Rather than rejecting the Bush administration's ill-conceived notion of a 'war on terror,' the Obama administration's position on detainees has merely tinkered with its form."

Coupled with the Obama administration's adoption of the Bush administration's "state secrets" position to shield government misdeeds from public scrutiny or legal challenge, Attorney General Eric Holder's assertion that the Guantanamo detention facility is "well run," the dispatch of additional troops to Afghanistan and the continuation of economic policies based on bailouts and massive government spending, President Barack Obama is starting to look an awful lot like President George W. Bush, with fewer smirks and more friends in the press.

email J.D.: civilliberties (at) tuccille.com

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