In a new filing, President Barack Obama has dropped “enemy combatant” status as an express standard for holding detainees at Guantanamo Bay. In the press release below, Attorney General Eric Holder has also informed a federal court in Washington, D.C. that it will no longer rely on the President’s independent authority as Commander-in-Chief — the basis for many of former President Bush’s most extreme claims. I discussed the change on this segment of the Rachel Maddow Show.
It is an important day for this country as this Administration regains the credibility lost by the prior Administration’s violation of international and domestic laws. However, the Administration is still arguing that it can hold these individuals without federal charges and it is still trying to quash lawsuits filed by their counsel. This could be purely rhetorical in the end. The biggest danger is that it is an effort to make Obama look principled on international law before he blocks any criminal investigation of war crimes by his predecessor.
The entirety of the Justice Department press release is below:
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.
It’s a testament to how bad things had gotten that this is big news, or for that matter that the change had to be made in the first place.
Good On you Mr. President, you’ve taken a first step in earning my second vote.
I have to say this is a positive step. I look forward to seeing you on the RM show, Prof. She’s a great platform and I find her approach to the news refreshing.
Now if we could just get Obama to acknowledge he’s wrong about signing statements . . .
I’m having trouble putting this announcement in context (no doubt JT will address some of these issues tonight on RM). Guantanamo Bay is still open (and apparently worse under Obama, according to some), his DOJ lawyers are using state secrets privilege to bar cases from going to trial, etc. How far does this change go in terms of restoring basic tenets of due process with regard to the rollbacks of the past 8 years?
Wooooooooohooooooooo! Scrub, Rinse, Repeat…
I await JT’s more extensive take on this tonight. Here’s what the ACLU has to say. My own feeling is that “substantial support” as defined by the president is quite dangerous for reasons listed below.
NEW YORK – In a court filing today, the Obama administration argued that detention of prisoners held at Guantánamo is justified even if the individual is captured far from any battlefield and has not directly participated in hostilities. According to the definition offered in the government’s brief, individuals who provide “substantial” support to al-Qaeda or the Taliban can be detained.
The following can be attributed to Anthony D. Romero, Executive Director of the American Civil Liberties Union:
“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. Once again, the Obama administration has taken a half-step in the right direction. The Justice Department’s filing leaves the door open to modifying the government’s position; it is critical that the administration promptly narrow the category for individuals who can be held in military detention so that the U.S. truly comports with the laws of war and rejects the unlawful detention power of the past eight years.”
Look what else happened today. I think this is the reason the statement was released. From the CCR:
“March 13, 2009, Washington, D.C. – Four British former detainees alleging torture and religious abuse at Guantanamo filed their brief today in the D.C. Circuit Court of Appeals, and the Department of Justice, in its first opportunity under the new administration to address those issues, argued that detainees had no constitutional rights. The United States Supreme Court earlier granted the men’s certiorari petition and remanded the case for further consideration in light of the Supreme Court’s decision last summer in Boumediene v. Bush, which held that Guantanamo detainees had a constitutional right to habeas corpus.”
The important point being that the Obama DOJ argued detainees had no constitutional rights.
Jill: If I understand you correctly, you’re saying that Obama is only taking this step because he would have lost on his position anyways?
And I agree, depending on the definition of ’substantial,’ this news could be virtually meaningless.
Patience people. True basic definitions like “substantial” are always potentially problematic, but moving toward – rather than away from – international law in this instance is still inline with making our policy comport with how civilized countries have agreed to handle combatants and prisoners. Our rights are critical as is restoring them, but the rules of war are equally important for OUR troops. Could it be a smoke screen? Sure it could. Habeas corpus MUST be restored and it’s important to keep up the pressure on this issue. However, as a practical matter you have to have a standard of judgment. Would I prefer a clarification? You bet and I expect one too. I also think that part of substantial has to be a direct knowledge or expectation of reasonable knowledge that your actions were in furtherance of enemy action. Otherwise, it’s not hard to see a scenario where a travel agent could be pulled in by the nets as their contribution may be substantial, but unwitting. But let’s see how the definition process works out. I still think it’s a step in the right direction. Whether it’s a false step is still up in the air. I suspect that it will be a matter of litigation to refine the standard rather than a decree.
It’s a smidge more complicated than is being suggested here.
The detainees, as enemy combatants, don’t have ‘constitutional rights’ per se. They’re not citizens. SCOTUS ruled the detainees do have a right to pursue habeua corpus challenges to their detentions. It ruled that what the Congress and Bush et al agreed to do in their designation of these men as ‘enemy combatants’ etc, and it’s effect, is ultimately unconstitutional – from the ‘git-go’.
Slightly different thing…
http://www.scotusblog.com/wp/court-gives-detainees-habeas-rights/
“…The Court also found serious defects in the process that the Pentagon set up in 2004 to decide which prisoners are to be designated as “enemy combatants” — the status that leads to their continued confinement. This process is the system of so-called Combatant Status Review Tribunals. The procedures used by CSRTs, the Court said, “fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review.”
Justice Anthony M. Kennedy’s opinion for the majority in Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196) was an almost rhapsodic review of the history of the Great Writ. The Suspension Clause, he wrote, “protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the ‘delicate balance of governance’ that is itself the surest safeguard of liberty.” Those who wrote the Constitution, he added, “deemed the writ to be an essential mechanism in the separation-of-powers scheme.”
Even though the two political branches — the President and Congress — had agreed to take away the detainees’ habeas rights, Kennedy said those branches do not have “the power to switch the Constitution on or off at will.”…”
Patty,
I don’t think anyone is suggesting this is a simple issue. It does however impact both civil rights and the international treaties governing warfare. While I personally think the civil rights component is critical, it’s a narrow margin between that and protecting our troops. A move toward treaty can limit how abuses under Bush Co. could lead to our troops being treated as badly or worse should they be captured and using Bush’s violations of international law as an excuse. Separate issues, nearly equally important.
And on a cooking note, my lady friend is taking the reins tonight and she promised a variation on the Gorgonzola and fig pizza by way of adding what she called “Greek spiced shrimp”. I’ll let you know the results.
I’m trying to be polite here in suggesting it’s ‘more complicated’.
Good luck with the pizza! I do spicy shrimp with the Basic Tomato Sauce, carmelized leeks, and mozzarella, myself. But I really like my white clam pizzas with garlic and oregano and my lobster fra diavolo for sefood.
(came by for a look-see and find a nut job smearing the place. At least his or her name is appropriate – wack-job.)
Thought you all might be interested in what our neighbors to the north are thinking about the United States’ resident war criminal:
http://www.ffwdweekly.com/article/news-views/news/canada-should-bar-or-prosecute-bush-lawyer-3378/
Canada should bar or prosecute Bush: lawyer
Foreign Affairs stays silent on upcoming Calgary visit
As George W. Bush’s St. Patrick’s Day visit to Calgary draws near, the federal government is facing pressure from activists and human rights lawyers to bar the former U.S. president from the country or prosecute him for war crimes and crimes against humanity once he steps on Canadian soil….
DL,
Thank you for the link. Good to know some Canadians revile Bush.
Doglover,
You have noticed the VonTroll family that has infected the site and consistently spews its nonsense. I did see the story about the attorney in Canada who is trying to convince the Canadian authorities to follow the law and nab the Bushman when he visits for his upcoming speech. That would be a great day for the world if Bush is arrested for his war crimes.
For some reason that photo of Holder makes me want to point the finger gun and say “Dood!”
Now, if you’ll excuse me, I have a “Jump Street” marathon to get back to.
Dear wacka:
We know that you are capable of cutting and pasting other folks’ thoughts, a habit likely acquired during the course of your abbreviated education, but we have yet to see any tangible evidence of independent thought. I do not wish to make unreasonable intellectual demands on you, but since you are so well read, perhaps you can favor us with the source of the following quotation (the words are burned in my memory, but I simply cannot recall the writer): “Those who perceive themselves as possessed of great wit and insight, borne of their ability to faithfully declaim the words of others with solemn facility and deep passion, are generally regarded with contempt by their listeners, though it is most often disguised as the sort of amiable pity which one reserves for those occasions when one must suffer fools, but is disinclined to expose their absurdities to further humiliation, due either to the lateness of the hour or to the futility of the effort.”
DL,
Nice catch on the Canadian article! It brought a smile. Let’s just hope the Land of Poutine has the intestinal fortitude to actually arrest Bush. I certainly hope so, because I really love Canada and Canadians. I’ve always had a great time visiting and I’m lucky enough to call several of them friends.
Patty,
The pizza was fantastic! She told me for approx. 1/3 # of shrimp she used 1/4 teaspoon of Cavender’s Multipurpose Greek Seasoning, a dash of extra oregano, garlic powder and white pepper. She mixed the spices with garlic infused olive oil (just enough to coat) and marinated the shrimp for 20 minutes in the ‘fridge. The spicing allowed the shrimp to stand up to the Gorgonzola and was nicely complemented by the sweetness of the figs. There were no leftovers.
I didn’t get to hear JT last night so this is from my own reading and opinion. This statement makes no real change in our policy. As most of the human rights groups point out, it originates in the belief that terrorism is not a law enforcement matter, it is a war, a war without phsyical or time limits. Obama has stayed with the idea of “war on terror” from the beginning of his administration. It seems clear this is the paradigm they are/will use. There are many obvious problems with this paradigm, in fact, this way of looking at the problem has formed the basis for some of the US’s most lawless decisions.
Secondly, it does not really end Obama’s power to unilaterally proceed as “commander in chief”. The DOJ is not defining its terms. Without a narrow definition the “law” still remains: the president may choose whom he wishes to designate and imprison. I don’t want my president having this kind of power. It is illegal and dangerous. Right now, this power is primarily directed at people who seem far away (which was the point of Gitmo in the first place) and many people think they are guilty anyway despite all evidence. We should care about these people from many standpoints, as fellow human beings, as people concerned with the rule of law, and as people who would like to see an excellent terrorist recruiting tool taken away (to name of few), and as people who realize this power could be used against US citizens as well.
On this same day the Obama DOJ denied that anyone in Gitmo has habeas rights. There is the beginning and the end of this story, the rest is whitewash. Without this right any person taken to there, Bagram, or god knows where else, has no easy way to challenge their detention. Mistakes were/are/will be made.
The CCR and other groups have already outlined a complete plan for the orderly closing of Gitmo. There is no need for a task force to “study” the issue. That is a stalling tactic. Along with other decisions regarding detainees, secret keeping, presidential power protection acts and the failure to investigate war crimes, the pattern is clear. The DOJ is trying to mullify critics while slowing the whole process to restore the Constitution to a halt.
Got to side with you after further reading Jill. This is a false step for certain.
Here’s a great post on the issue from a blog I regularly read: http://dissentingjustice.blogspot.com/2009/03/change-same.html
FFN,
That is another interesting ‘blawg’ and I am pleased to see many lawyers expressing their opinions over the Internet regarding the U.S. Constitution.
I would especially like to see all of the ‘blawgging’ lawyers (not the disparaging adjective most often used to describe opinions of lawyers) coalesce into a critical mass of definitive recommendations to our 3 branches of government demanding their return to the rule of law and an adherence to the principles of the U.S. Constitution, the Bill of Rights, and the additional 17 Amendments.
JT: “This could be purely rhetorical in the end.”
Rhetorical?
Looks more like a concurrence to me.
At this stage, I am still unwilling to assume that Obama et al is a repeat of George Bush et al. I won’t do it after less than two months!!!!!
The world I live in allows me to accept that our new President is being as careful as he can possibly be in the unwinding of what amounts to Bush’s perpetual hog-tying of the Contitution.
It’s the ‘gift’ that keeps on ‘giving’, as it were… ;P
I am prepared to believe there is legal wisdom involved in his thinking, so I was delighted to find this from some who may very well be, apparently, entitled to have an opinion.
http://www.anonymousliberal.com/2009/03/al-marri-case.html
I wish George Bush was never’elected”, that this ‘war’ never started, and that Guantanamo could simply close tomorrow, but we have to deal with what ‘is’.
It’s just not as easy as clicking one’s heels, unfortunately,
it’s just not.
As I sit here listening to that fabulous 1940s/50s songstress Vera Lynn singing ‘The White Cliffs of Dover’, I sure want what the patient Patty C thinks will happen, that is, “tomorrow, just you wait and see…”
I am not ‘waiting’. It’s not my style to wait. I have made it VERY clear to the powers that be, some of whom I have personal access to, what my expectations are.
George Bush et al is/was a disaster.
I want the pendulum to swing back where it belongs.
Patty C:
The Afghanistan War is also an issue the implicates longterm detention. Obama has made the same argument as the Bush administration: Afghan captives at Bagram Air Force Base do not qualify for habeas relief.
Pstty C:
I read a wonderful op/ed article by Frank Rich today on the end of the “Culture Wars.” It points up to me that Obama is doing many things right but they are being met with a collective yawn from the Right, who stands to lose even more ground by railing against a popular President more concerned with the competent performance of his job to extricate us from the Bush mess, than pandering to ideologues of either stripe. Here’s the site:
http://www.nytimes.com/2009/03/15/opinion/15rich.html?_r=1
Amen!
“Moses dragged us for 40 years through the desert to bring us to the one place in the Middle East where there was no oil. ”
-Golda Meir
http://www.adailycartoon.com/Grafix%20/Panel%20Cartoons/moses.gif
mespo,
Nice catch on the Rich article. I don’t read him every day, but most days. He’s one of the better writers at the Times.
The object of this exercise must result in one whereby all detainees, are no longer held without any rights whatsoever
- even it’s called something other than habeas corpus which is a petition to a federal US court.
How that interest ends up being satisfied is less important than achieinv the goal, no matter what you call it in the process.
And I don’t think that’s been all figured out yet.
Patty,
Being better than something is not the same as being good.
I’m more than willing to give the President time to prove he’s deserves a second term, but simply not being a repeat of Bush doesn’t get my vote. He needs to prove that he’s working on completely restoring the rule of law, not just restoring the parts that are convenient for his administration. Long term goals are great, but they aren’t met by short term gestures.
No. You are understandably impatient and seem to want him to go crashing through the past eight years like a bull in a china closet and just ‘git’ er done’.
And what I am suggesting is that there has to be a strategy with equal thought given to where we’ll t Iend up, possibly for the first time, AND how to get ‘there’.
I believe it’s naive to imagine all that can happen over night.
If you liken this situation to being faced with a locked door and needing to get inside. There are a lot of ways to approach the problem including blasting it open with plastic explosives. Get’s the job done, but causes a lot structural damage in the process.
It makes much more sense to slow down and find the key, first, don’t you think?
Patty,
I (and I believe the others that have spoken out) understand that this will be a process, and that there is no way for the current administration to hit “ctrl-z” and simply fix everything. If you review my comments on this subject, you’ll find that I was among the first to applaud this decision as a positive step.
It is an essential right of We the People to let those we put into office know how we feel. Included in that is when we feel more work needs to be done. I won’t stop putting pressure on ANY elected official to restore the rule of law until it is fully restored, and then I’ll transfer my energy to demanding it’s maintenance.
While your calls for realistic expectations serve an important function, so do the reminders of others that time is of the essence. It is often the case the longer reform gets put off, the harder it is to achieve.
To continue your analogy, sometimes an axe at hand is a better option than a key you have to search for. This is simply a discussion as to which option is best.
You missed my analogy.
There’s value in this door, which is centuries old, hard-core mahogany, and still fits the style of the building perfectly.
Any action that breaks apart that door is the ‘wrong’ action, even if you are successful in finding the key later.
You need both if you want to maintain not only the original hand-carved beauty, but the much needed security in having a door with a key that still works.
You can always replace a door and/or install new locks, but it’s never going to be the same as what what was there originally.
And if you’re going to go to all that extra trouble you definitely should be aiming for something better, if that’s even possible.
Patty,
Your analogy is is a very effective illustration of why the quickest solution to a problem isn’t always the best. The problem is that all analogies have their limitations. Yours is limited to considering only the value of the door, not the circumstances that require getting around that door. No matter how valuable the door, there’s always going be something worth taking an axe to it over.
For some of us bringing our country back into compliance with international and it’s own laws us a higher priority than political considerations. We also seek to remind those we put in power that talk isn’t enough, they need to take concrete steps towards that goal. You seek to remind us that some things take time, and are more complicated than they first appear. Both are important elements to the dialogue and neither should be brushed aside as “not getting it,” as you seem to be trying to do.
‘…No matter how valuable the door, there’s always going be something worth taking an axe to it over.
For some of us bringing our country back into compliance with international and it’s own laws us a higher priority than political considerations…’
——-
‘Getting round the door’, is precisely what George Bush did and it’s still illegal. And not just for ’some of us’…
I know you’d like to take my analogy and beat me over the head with it, but I can’t let you do that – sorry.