Friday, March 13, 2009

Change = Same?

Today, the Department of Justice announced that it would no longer rely upon a individual's "enemy combatant" status in order to justify indefinite detention by the President. Instead it will advance arguments rooted in the international "law of war" and the Authorization for Use of Military Force passed by Congress.

Although discarding the "enemy combatant" label makes for great political soundbite, at present, it does not materially alter the government's treatment of Al Qaeda members and other terrorism suspects, nor has it changed the government's legal position in lawsuits brought by former detainees alleging maltreatment by the government.

The government described its rhetorical shift in a formal statement and in a legal brief submitted in opposition to a lawsuit against Donald Rumsfeld and other officials by former detainees. The plaintiffs allege that they were tortured and deprived of religious freedom. DOJ argues that the individuals have no enforceable rights against the United States and that even if they had such rights, the defendants are immune from liability.

The government will no longer claim broad authority over "enemy combatants," but will instead use a functional test to determine whether it can indefinitely detain suspects and deprive them of rights that they might otherwise possess. A closer look at the criteria, however, shows very little difference between the "new" standard and the old one used by the Bush administration.

The SCOTUS blog has the details:
Here is how [the Bush] Administration defined ["enemy combatant"]: "At a minimum, the President’s power to detain includes the ability to detain as enemy combatant those individuals who were part of, or supporting, forces engaged in hostilities against the United States or its coalition partners and allies. This includes individuals who were part of or directly supporting Taliban, al-Qaida, or associated forces, that are engaged in hostilities against the United States, its coalition partners or allies. This also includes any persons who have committed a belligerent act or supported hostilities in aid of enemy forces."

Here is the definition of detention authority, without the label "enemy combatant," that the Obama Administration outlined Friday: "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."
SCOTUS also sets forth out the "differences" between Bush and Obama on this issue:

First, the new version requires proof of “substantial” support of Taliban or
Al-Qaeda forces, while the former version required proof of “direct” support of such forces.

Second, the new version requires proof of “substantial” support of forces (other than Taliban or Al-Qaeda) engaged in hostilities against the U.S. and its coalition partners, while the former version only required “support.”

And, third, the new version applies to a person who “directly” supported hositilities to aid enemy armed forces, while the former version only required “support” of such hostilities, and did not include the word “armed” as to enemy forces who had been supported.

The Center for Constitutional Rights, which represents plaintiffs in the litigation, does not mince words. CCR argues that DOJ has:

[A]dopted almost the same standard the Bush administration used to detain people
without charge – with one change, the addition of the word “substantially”
before the word “supported.” This is really a case of old wine in new bottles.
This sounds like the "extraordinary rendition"/"rendition" debate.

PS: Bush also advanced arguments based on the law of war and the AUMF. Also, it does not appear that DOJ rejects Bush's argument that Article II confers detention authority upon the President; instead, it seems that it has simply declined to assert this argument.


dualdiagnosis said...

Come on now, let's face it, Bush was right.

Darren Lenard Hutchinson said...

You expect that one to go over without a challenge?

dualdiagnosis said...

Lowry says it well-

"Barack Obama has perfected a three-step maneuver that could never even be attempted by a politician lacking his rhetorical skill or cool cynicism.

First: Denounce your presidential predecessor for a given policy, energizing your party’s base and capitalizing on his abiding unpopularity.

Second: Pretend to have reversed that policy upon taking office with a symbolic act or high-profile statement.

Third: Adopt a version of that same policy, knowing that it’s the only way to govern responsibly or believing that doing otherwise is too difficult.

Repeat as necessary...."

Darren Lenard Hutchinson said...

I blame the Left more than Obama. Politicians often ride the waves of voter anger over a certain issue, promising "change." Bush promised to restore "dignity" to the White House. And even though I think the Left was way too emotional about him especially during the last couple of years, I do not really believe that he left the White House more dignified than before.

The Left made very sustained criticism of Bush on policies ranging from civil liberties to economic policy to war. Obama made generalized statements about "change" and how he would restore the nation's image in the world, but he only made a few specific policies.

The Left idolized Obama because they hated Clinton and wanted to prove that the USA had moved "beyond race." In order to believe in their fantasy, they constructed Obama as a leftist. Now, they are upset. It's not his fault, though. There are some issues -- like earmarks -- where he is clearly not living up to an explicit promise. But with respect to civil liberties and war, he has affirmed Bush, which should upset the Left. So far, many progressives have been defensive, instead of critical.

For more of my take, see: Chicken Little Politics: Moderate Obama Causes Progressive Panic

Brad said...


I think that’s a pretty accurate assessment with regards to foreign policy even though he pushed so hard for ‘change’ in that area.

Darren Lenard Hutchinson

I think the earmarks stuff was relatively late in the game for Obama – especially once McCain was the Republican nominee. It was Iraq from day one of his campaign and he was absolutely the one who made ‘change’ the key word of the election. So much so that even Republicans were trying to adopt it by the time of the New Hampshire primary. His stance on Iraq and ‘enemy combatant’ should upset the left because he was the most vocal opponent of Bush on these issues.

Darren Lenard Hutchinson said...

Brad - I'll accept your statement that Obama was "late" on earmarks. Even though - he still spoke more "loudly" on the subject than the others. He vowed not to seek earmarks as a Senator for 2009 -- which he did. And he dared challenged the other candidates to join him on the subject.

Along with foreign policy, Obama always talked about transparency. The earmarks, tax disclosure, and lobbyist policies all went to that particular subject. Long before he politicized McCain's failure to disclose his income and the Bridge to Nowhere earmark, he bahsed Clinton on the same issues.

I guess I'm more cynical, but I am a leftist, and I never trusted the hardline Obama took on these issues. Part of being a leftist is questioning authority. The Left failed themselves.

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