Reno Strikes Back: Files Amicus Brief against Use of “Enemy Combatant” Designation
Former U.S. Attorney General Janet Reno and a number of other former U.S. Department of Justice officials filed an amicus brief yesterday in Al-Marri v. Wright, a case currently before the U.S. Court of Appeals for the Fourth Circuit (see the WPost article here).
As a legal argument, the amicus brief offers little that is new or surprising. It argues that the “enemy combatant” designation cannot be used against civilians capture outside the battlefield – this is quite likely to be the next front in the legal war over “enemy combatants” but the brief doesn’t add much.
More interestingly, the brief essentially declares the Military Commissions Act of 2006, which seemed to broadly authorize the detention of enemy combatants, to be largely meaningless. The brief spends a lot of time arguing that such an individual should have recourse to habeas relief. This may be so, but even if the individual does have recourse to habeas, I think the Military Commissions Act still authorizes the detention as an enemy combatant. The detainee could have habeas but this doesn’t mean he will “win” on habeas. The power to detain an individual as an enemy combatant might still be reviewable under the limited due process rights outlined in Hamdi.
But this is not the main thrust of Reno’s argument, which basically points to all the neat anti-terrorism laws that folks can be prosecuted under. She is right, but she is also missing the point. The theory behind enemy combatants is not so much that these individuals are criminals, but that they are enemies who should and can be detained. They might also be criminals, but the detention is not aimed at prosecution or punishment. It is aimed at preventing another attack in the war.
This is not to say that the “war” school is necessarily right. This is plainly not the same kind of war. But Reno et. al’s brief also reveals the pre-9/11 pure law-enforcement mindset that has its own serious problems and deserves a fair amount of criticism as well.