Constitutional Law

"Enemy Combatants" No More

The Obama administration has announced that it will no longer detain terrorism suspects as 'enemy combatants.' The term had been applied by Bush administration officials to prisoners detained indefinitely without the rights extended to criminal defendants by the Constitution or those covering prisoners of war under the Geneva Conventions.

In a memo filed with the District Court for the District of Columbia, the Department of Justice (DOJ) stated that it 'is refining its position with respect to its authority to detain those persons who are now being held at Guantanamo Bay.' Rather than relying solely on the executive's authority as commander in chief, as had been done under President Bush, the DOJ premised its detention authorities on Congress's 2001 Authorization for the Use of Military Force and 'principles of the laws of war.'

As pointed out by The BLT, the new legal framework is spelled out on page three of that memo:

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 force.

In premising its authority on powers granted by Congress and the laws of war, the Obama administration may be attempting to draw a bold line between its policies and the unitary executive theory adopted by the Bush administration to expand presidential authority.

A separate declaration by Attorney General Eric Holder – a former ACS Board Member – is available here. The DOJ press release is here.

Full post as published by ACS Blog on March 13, 2009 (boomark / email).