Obama Administration Will Avoid the Enemy Combatant Question
I’ve been critical of the Obama Administration’s deceptive approach to war-on-terrorism legal issues (trash your predecessor, but endorse some of his key policies). But I don’t have any real criticism of its latest decision to avoid the legal fight over the power to detain enemy combatants in the U.S.
The Justice Department, in an abrupt change in policy from the Bush administration, is preparing to bring terrorism-related charges against a man identified as an operative of Al Qaeda who has been held in a military brig for more than five years, government officials said Thursday.
The charges would move the case of the only enemy combatant to be held on American soil, Ali Saleh Kahlah al-Marri, into a civilian criminal court. The Bush administration had argued that he could be held indefinitely without being charged.
This is a smart move, in my humble opinion, because it is far from clear that they could win this fight in the U.S. Supreme Court. The Bush Administration barely prevailed in Hamdi. Indeed, this strategy preserves this power to detain enemy combatants t some later date without actually having to defend this argument in court (and possibly lose it). Is this a bit tricky and sly? Yes, but that is not necessarily a bad thing.