Obama Administration Drops Enemy Combatant Status as Basis for Holding Detainees

holderericIn 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.

36 thoughts on “Obama Administration Drops Enemy Combatant Status as Basis for Holding Detainees”

  1. ‘…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.

  2. 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.

  3. 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.

  4. 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.

  5. 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?

  6. 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.

  7. 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.

  8. 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.

  9. 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:


  10. 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.

  11. 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.

  12. 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…”

  13. 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.


    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.

  14. JT: “This could be purely rhetorical in the end.”


    Looks more like a concurrence to me.

  15. 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.

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