No More “Enemy Combatants”?
The Obama Administration selected Friday afternoon (go figure) to release its whammy of a brief on the standard it believes should govern the President’s authority to hold the current Guantanamo detainees.
Here’s the key paragraph:
The President has the authority to detain persons that the President determines
planned, authorized, committed, or aided the terrorist attacks that occurred on
September 11, 2001, and persons who harbored those responsible for those attacks.
The President also has the authority to detain persons who were part of, or
substantially supported, Taliban or al-Qaida forces or associated forces that are
engaged in hostilities against the United States or its coalition partners, including any
person who has committed a belligerent act, or has directly supported hostilities, in
aid of such enemy armed forces.
How is this different from the Bush position? In at least several ways. (1) The President’s authority to hold the detainees flows not from some inherent constitutional authority, but by the statute passed by Congress in the wake of September 11, 2001 – the Authorization for the Use of Military Force (AUMF). The first sentence of the definition above is essentially verbatim a recitation of that statute. (2) The meaning (and limits) of the AUMF is, as the administration brief explains repeatedly, “necessarily informed by principles of the laws of war.” That is, international law matters in interpreting the scope of this domestic law. It is possible that the Bush administration said as much on occasion (can anyone cite an example?). But its reading of international law generally (and international humanitarian law in particular) was so idiosyncratic that it was hard to take such statements seriously. (3) As the DOJ’s press release statement notes, the brief doesn’t use the term “enemy combatant” so it’s no longer meaningful/ relevant to the legal discussion. (4) As the brief also says, its statement of the standard here may be subject to further refinement following the completion of its ongoing task force review of detention policy and standards.
What’s still unclear? The nubbin is in the second sentence. The Bush Administration’s enemy combatant definition was generally this: “an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.” The new standard: “persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.” Under Obama, now an individual has to have substantially supported – not just “supported” Taliban or Al Qaeda forces. What’s the difference? Perhaps something promising, but it’s hard to say. Other than that, the standards are identical. As the brief says: “the contours of the ‘substantial support’ and ‘associated forces’ bases of detention will need to be further developed in their application to concrete facts in individual cases.”
In all events, here’s perhaps cold comfort for all those who’d argued the administration should have pursued the Al Marri case (the non-citizen detained as an enemy combatant in the United States who was recently, grace a Obama, finally charged with a crime and transferred back to civilian custody) all the way to the Supreme Court. The Obama administration may well have argued that the AUMF gives the President the authority to detain individuals picked up in the United States as (if not enemy combatants in name) AUMF detainees. As the brief says: “The AUMF is not limited to persons captured on the battlefields of Afghanistan. Under a functional analysis, individuals who provide substantial support to al-Qaida forces in other parts of the world may properly be deemed part of al-Qaida itself. Such activities may also constitute the type of substantial support that, in analogous circumstances in a traditional international armed conflict, is sufficient to justify detention.” Such a view was in fact expressed in this key colloquy between Senator Lindsay Graham (R-S.C.) and U.S. Solicitor General nominee Elena Kagan at her Senate Judiciary Committee confirmation hearing.
“Do you believe we are at war?” Graham asked.
“I do, Senator,” Kagan replied.
Graham cited the example of someone who is not carrying a gun or fighting on a battlefield. “If our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield?” he asked. He added that he had asked the same question of Holder, who replied that he agreed that person was on the battlefield.
“Do you agree with that?” the senator said.
“I do,” Kagan replied.
That said, I should back up and note there is at least one other statement in the brief that is, in my view, worth applauding.
Although the concept of “substantial support,” for example, does not justify the detention at Guantanamo Bay of those who provide unwitting or insignificant support to the organizations identified in the AUMF, and the Government is not asserting that it can detain anyone at Guantanamo on such grounds, the particular facts and circumstances justifying detention will vary from case to case, and may require the identification and analysis of various analogues from traditional international armed conflicts.
Why is this a good thing? Because this brief isn’t about U.S. policy toward detainees generally, or even U.S. policy toward detainees going forward. It’s about the U.S. litigating position toward the unique and woebegone detainees held at Guantanamo Bay – the sui generis set of folks for whom, thanks to the previous administration’s repeated violations of IHL on the books (inhumane treatment, inadequate status hearings, etc. etc.), there are now no good options left – only less bad ones. In undertaking the necessary task of resolving these impossible cases, it seems to me the administration’s brief should be read as an effort to do as little further violence to the law on the books as possible. In insisting the question of substantial support be resolved on a case by case basis, it is trying to avoid letting these hard Gitmo cases make bad law across the board going forward. Under the unique circumstances here, that is perhaps the best we can hope. Stay tuned.