The Obama Administration has jettisoned yet another important vestige of the Bush Administration.
The Justice Department announced today that it will no longer use the term "enemy combatant" to describe detainees held at Guantanamo.
Also, the Obama Administration is not basing its power to detain individuals on the controversial power the Bush Administration asserted belonged to a president during a time of war by virtue of Article Two of the U.S. Constitution.
Instead, and importantly, the administration says the authority arises from the interplay of international law and congressional authorization.
One noteworthy aspect of this is that it's an instance of a president voluntarily relinquishing some power claimed by a predecessor. Presidents tend to be very jealous of presidential power, not wanting to weaken the institution for them or their successors.
But President Obama, a former law school teacher of constitutional law, is clearly sending the message that he believes President Bush interpreted Article Two wrongly. The dropping of "enemy combatant" reinforces that message. The Bush Administration coined the term to deal with suspected terrorists captured on the battlefield.
DOJ release:
In a filing today with the federal District Court for the District of Columbia, the 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."
The Department also submitted a declaration by Attorney General Eric Holder stating that, under executive orders issued by President Obama, the government is undertaking an interagency review of detention policy for individuals captured in armed conflicts or counterterrorism operations as well as a review of the status of each detainee held at Guantanamo. The outcome of those reviews may lead to further refinements of the government’s position as it develops a comprehensive policy.
"As we work towards developing a new policy to govern detainees, it is essential that we operate in a manner that strengthens our national security, is consistent with our values, and is governed by law," said Attorney General Holder. "The change we’ve made today meets each of those standards and will make our nation stronger."
In its filing today, the government bases its authority to hold detainees at Guantanamo on the Authorization for the Use of Military Force, which Congress passed in September 2001, and which authorized the use of force against nations, organizations, or persons the president determines planned, authorized, committed, or aided the September 11 attacks, or harbored such organizations or persons. The government’s new standard relies on the international laws of war to inform the scope of the president’s authority under this statute, and makes clear that the government does not claim authority to hold persons based on insignificant or insubstantial support of al Qaeda or the Taliban.
The brief was filed in habeas litigation brought by numerous detainees at Guantanamo who are challenging their detention under the Supreme Court’s decision last summer in Boumediene v. Bush. A copy of the brief is attached.
Eric Holder's memo regarding detainees.
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