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. Got to side with you after further reading Jill. This is a false step for certain.

  2. 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.

  3. 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.


    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. 😀

  4. 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.”

  5. 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.

  6. 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.

  7. DL,

    Thank you for the link. Good to know some Canadians revile Bush.

  8. (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:


    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….

  9. 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.

  10. 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.

  11. 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…


    “…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.”…”

  12. 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.

  13. 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.

  14. 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.

  15. 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.”

  16. 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?

  17. 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 . . .

  18. 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.

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