HORTON: Enemy Combatant, Rest in Peace?

[L. Coyote]

March 14, 12:31 PM, 2009 · No Comment · http://harpers.org/archive/2009/03/hbc-90004557
Enemy Combatant, Rest in Peace?

By Scott Horton

Among George W. Bush’s controversial legal maneuvers was a repackaging of the notion of “enemy combatant.” If the President determined a person was an “enemy combatant,” the Bush Justice lawyers reasoned, he could be seized and imprisoned indefinitely with no right to a lawyer, to be confronted with charges or to present his case to a court. The President’s determination was the beginning and the end, and the rule first adopted at Runnymede in 1215, under which a person could only be deprived of his freedom by operation of law, was thus declared quaint and obsolete. During the campaign, Barack Obama pledged to overturn this abuse. Has he? The Obama Administration announced today that it was no longer using the Bush Administration’s concept of “enemy combatant.” Said Attorney General Eric Holder:

As we work towards developing a new policy to govern detainees, it is essential that we operate in a manner that strengthens our national security, is consistent with our values, and is governed by law. The change we’ve made today meets each of those standards and will make our nation stronger.

But the Obama Administration’s position is much less than meets the eye. It continues to reserve broad discretion for the President to hold combatants outside of the protections afforded by the criminal justice system. Here’s the key paragraph .....