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.

Signs of Life: Human Rights Groups Contest Pentagon Report on Guantanamo Bay

Last week, the Pentagon released a report -- commissioned by President Obama -- which concludes that the Guantanamo Bay detention facility complies with the Geneva Conventions. During the Bush administration, human rights activists passionately contended that the treatment of detainees at the facility violated domestic and international law.

The New York Times reports that the Center for Constitutional Rights and Amnesty International (two vocal critics of Guantanamo Bay) have blasted the report. The organizations played a large role in condemning Bush's policies at the detention facility, and the Center for Constitutional Rights represents several detainees.

Here's a clip from the article:

The Pentagon official who inspected the Guantánamo Bay prison at the behest of President Obama and declared its conditions humane described himself Monday as a “fresh set of eyes” who had been given free rein to go about his work.

But detainees’ lawyers and human rights groups ridiculed the 85-page report that the official, Adm. Patrick M. Walsh, sent to the White House this weekend. They called it a public relations gesture by the new administration to try to quiet criticism of the prison while officials work to close it within a year.

“There is no basis to believe, other than his say-so, that this was an independent report,” said Vincent Warren, executive director of the Center for Constitutional Rights.

Coming in the early days of the Obama administration, the exchange was notable for its similarity to the back-and-forth during the Bush years over what the Guantánamo prison is really like.

The article reports that the Pentagon prepared the study by conducting "random visits and interviews with detainees, guards, interrogators and commanders." Also, the author, Admiral Patrick Walsh, "is the vice chief of naval operations, and the prison is on a naval base at the southeastern tip of Cuba." These factors undermine the credibility of the study. The article reports that human rights attorneys have released their own study based on interviews with their clients; the human rights report makes dramatically different findings than the Pentagon study.

I wonder how "liberal" bloggers who have accused progressive critics of Obama's terrorism-related policies of being anti-liberal will react (if at all) to the latest news.