Constitutional Law

Examining Administration's Shift On 'Enemy Combatant'

By Hamid Khan, an associate with the Denver office of  McKenna Long & Aldridge LLP and an adjunct professor at the University of Colorado School of Law. Khan previously served as counsel of record for five detainees held at Guantanamo Bay. He is also Truman National Security Fellow.

In recent court filings, the Obama administration announced it is abandoning the term 'enemy combatant' used by the Bush administration as a means to justify indefinitely holding prisoners at the U.S. Naval Facility at Guantanamo Bay. Included in the Justice Department filing was a declaration from Attorney General Eric H. Holder Jr. that the department was continuing an interagency review of detention policies and a review of the status of each detainee at Guantanamo. Finally, under the new policy, the Justice Department says a person may only be detained if he or she had provided 'substantial assistance' to terrorists.

The administration's largely symbolic move, packs some legal potency. Consider that under the previous administration, the president could declare someone an 'enemy combatant' and order them held indefinitely. But the Justice Department now says that power no longer lies with the president, but with Congress and under the auspices of international law. Thus, the Obama administration has cemented its disdain for the nefarious interpretation of executive power advocated by Bush lawyers that the president has inherent authority as commander in chief to detain virtually anyone, rather relying on Congress' power under the 2001 Authorization to Use Military Force.

Moreover, the policy shift requires an individual to have 'substantially supported' the Taliban, al Qaeda or other terrorist organizations to be detained. While this appears explicitly unclear, the Obama administration may be implying that the onus on demonstrating the level of assistance to a terrorist organization resides with the government as opposed to the detainee.

Admittedly, the problem with the administration's policy is its lack of clarity on certain important issues such as what precisely is 'substantial' assistance, a charge readily lobbed at the previous administration. Moreover, the Obama administration has not retreated from any assertion the government possesses the authority to hold those presently at Guantanamo. Specifically, the filing supports the assertion that the government may hold detainees, even if they were not captured on the battlefield. Conversely, detainees have argued that the administration should only order the imprisonment of those who directly participated in hostilities.

While most observers have concluded this decision is merely a change in language which will not have much immediate effect, this position is perhaps both premature and ignores the bigger picture. Taken in concert with Obama's intention to close the Guantanamo Bay prison, along with the Justice Department's continuing interagency review of detention policies and the status of each detainee, and considering an apparent shift in where authority lies in detaining individuals – all prescribed within the first 60 days of the new administration – these moves represent significant policy shifts regarding the status and situation of detainees at Guantanamo from the previous administration.

Full post as published by ACS Blog on March 18, 2009 (boomark / email).