Re-branding "Enemy Combatants"

For seven years in the infamously named (and disgracefully prosecuted) “war on terror,” the White House's legal arguments were based on self-serving inventions, not on legal precedent. One of those inventions was the “enemy combatant” designation. There is no such thing as an “enemy combatant” outside the glossary of White House expediency. Arbitrarily to declare some individuals “enemy combatants” in order to deny them constitutional protections and judicial review—to arbitrarily suspend habeas corpus—reeks of the very abuses of power the Constitution is designed to prevent.

In successive decisions since 2004, the U.S. Supreme Court ruled that the president is not above the law even in time of war, that he does not get to deny any prisoner’s right to due process (although that process may be duly narrowed to irrelevance by Congress, as it was by the Military Commissions Act), and he does not decide when and where American law is preempted by executive fiat. But at no point did the court rule on the “enemy combatant” designation—the root of the Bush White House’s poisoned tree, from which so many nooses hung. Last week, in a 13-page brief filed in federal district court, the Obama administration announced that it would no longer refer to prisoners at Guantanamo as “enemy combatants.” It was “refining its position,” in the brief’s opening line. “Principles derived from law-of-war rules governing international armed conflicts, therefore, must inform the interpretation of the detention authority Congress has authorized for the current armed conflict.”

It sounds better than it is. Obama is retaining the “right,” non-existent in international law, to detain the same prisoners, indefinitely, without charge. He’s not replacing the Bush policy. He’s re-branding it while cloaking it in language more seductive to the international community, and less singularly belligerent, as it was under Bush. But in the end, the change is deceptive and possibly pernicious, if it codifies, under the guise of more acceptable language, an unacceptable policy.

Noah Feldman, a law professor at Harvard and a fellow at the Council on Foreign Relations, writes today in The Times that the re-branding has value:

Perhaps what’s most important here is what Mr. Obama’s lawyers do not say. The Bush White House long insisted that the president had inherent power as commander in chief to do whatever it took to defend the country — including overriding American and international law. The Obama filing, however, is silent on the topic of inherent executive power. Indeed, the magic words “commander in chief” never even appear.

Technically, the Obama lawyers have not abandoned the argument for broad presidential power, just implied that such authority is unnecessary to get them what they want.

Yet omitting the claim to unfettered executive authority shows respect for Congress and international standards. In effect, the Obama administration is saying to the courts that if the detainees cannot be held as a matter of federal or international law, judges should release them. This approach is brave — so brave it might even prove foolhardy if the courts, sick of nearly a decade of detention, decide to clear the decks.

But there’s more hope and conjecture than verifiable likelihood in Feldman’s take. Federal courts are stacked with Bush appointees. They haven’t shown themselves inclined to provide judicial redemption on account of the Guantanamo prisoners, preferring either to pass the buck to appellate courts or to defer to the other two branches of government, which amounts to the same thing.

The Obama re-branding does away with “enemy combatants” while inventing a new standard. The president would have the right to detain anyone who “substantially supported” terrorists. That’s certainly an improvement over the Bush policy, which gave the president the right to detain anyone he declared an “enemy combatant,” or anyone who may have “supported” al-Qaeda or the Taliban—a definition so broad and imprecise that even unwitting donors to suspect charities could be imprisoned. But giving the president the right to imprison anyone who “substantially supported” terrorism is just as vague, if slightly less broad, an authority. And it’s invented out of thin air. No such thing in international law.

Feldman concedes the inevitable:

The upshot is that the Obama approach is potentially broad enough to continue detaining everyone whom the Bush administration put in Guantánamo in the first place. The legal theories are subtler, and the reliance on international law may prove more attractive to our allies. But President Obama is stuck with the detainees Mr. Bush left him, and some may pose a real danger. Faced with this conundrum, and pressed for answers by judges who are rightfully impatient, the administration is hurrying to reframe existing powers in new legal doctrines.

Will the new wording make a difference when it comes to prisoners’ due process? Not likely. “Without real-world effects,” Feldman writes, “even the most elegant new legal arguments are nothing but words.”