You Say Potato, I Say Enemy Combatant

The news that the Obama Justice Department will no longer rely on the President's supposed inherent Commander-in-Chief authority and will no longer use the term "enemy combatant" to refer to detained persons would have been a big deal had it not come long after Supreme Court decisions that basically required as much. In response to the earliest challenges to its power to hold war-on-terror detainees, the Bush Administration originally asserted sweeping powers, but those were effectively cut back by the Supreme Court to more or less where the current Administration would set them.

Attorney General Holder's memo makes much of the fact that the Obama Administration will rely on the September 2001 Authorization for the Use of Military Force (AUMF) as the source of its power to detain, but of course, the Bush Administration consistently said much the same thing. Indeed, Justice O'Connor's most quoted line in her 2004 plurality opinion in Hamdi v. Rumsfeld--"a state of war is not a blank check for the President"--came in response to President Bush's argument that even if he lacked inherent Commander-in-Chief authority to detain citizens (and non-citizens) without judicial review, he had been given that authority by Congress via the AUMF. So Hamdi and the other Gitmo cases, which involved aliens, already established the proposition AG Holder touts: namely, that the authorization of force by Congress also limits the President.

Similarly, the abandonment of the term "enemy combatant" is not, at least by now, a substantive change. The problematic nature of the Bush Administration policy concerned two issues: 1) Its willingness to treat as enemy combatants persons who might more readily be thought to be criminals engaged in illegal acts far away from any battlefield; 2) Its broad notion of who counted as an unlawful enemy combatant not entitled to be treated as a POW under the Geneva Conventions.

With respect to 1), the Holder memo makes no substantive change. It asserts: "the AUMF is not limited to persons captured on the battlefields of Afghanistan" or, it is clear, battlefields anywhere else. People providing substantial support to the Taliban or al-Qaida will still be subject to military custody, regardless of their proximity to any battlefield.

As to the second question, it seems likely that the Obama Administration will take a somewhat narrower view than did the Bush Administration, but on the crucial question, there is no change: The new administration also believes that captives from irregular forces (such as the Taliban and al-Qaida as well as those who provide substantial support) can be subject to military detention without being given the status of POWs.

Early press reports about the Holder memo have emphasized the abandonment of the term "enemy combatant" and the new requirement that a person have given "substantial" support to the Taliban, al-Qaida, or associated forces in order to qualify for detention. To my mind, the abandonment of the term "enemy combatant" is mere semantics, whereas the emphasis on substantiality does not mark a significant change in actual practice. The Bush Administration did not purport to detain anybody at Gitmo on the ground that the detainee had unwittingly given money to a front operation for al-Qaida, thinking he was giving to a children's hospital.

There are, nonetheless, at least two reasons to regard the Holder memo as marking something of a break with the policy of the late Bush Administration. First, the memo pretty clearly ties Obama Administration policy to international law, including customary international law and the Geneva Conventions. The Military Commissions Act (MCA) declared such sources of law ineffective as a ground for judicial relief when relied upon by detainees, and that aspect of the MCA probably survived the invalidation of the habeas-stripping provision in Boumediene v. Bush. Thus, as a matter of domestic law, the Obama Administration probably could have gotten away with ignoring international law in formulating detainee policy. To the Administration's credit, the Holder memo accepts that whether or not enforceable by U.S. courts post-MCA, customary international law and the Geneva Conventions remain binding on the political branches of the government.

Second, the memo repeatedly refers to the ongoing and comprehensive re-evaluation of detainee policy that the government is conducting. It is thus possible that AG Holder is simply staking out a fairly expansive position to allow some flexibility later, depending on the outcome of that re-evaluation.

But those two important caveats aside, it is striking how little has changed, despite the hullabaloo the Justice Department has made of the new definitions.

Posted by Mike Dorf