No More 'Enemy Combatants' -- But Is Obama Merely Rebranding Bush's 'War on Terror'?
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The most pervasive early criticism of Barack Obama, aside from his inexperience, was that he was all rhetoric, no substance, an allegation he eloquently dismissed.
"Don't tell me words don't matter," Obama declared on the campaign trail last February. " 'I have a dream.' Just words? 'We hold these truths to be self evident, that all men are created equal.' Just words?" (That particular turn of phrase led to cries of plagiarism, but that's another story.)
Arriving in the Oval Office, Obama immediately announced a number of executive orders whose language carried enormous promise. He pledged to close Guantanamo. He suspended the military commissions process. He reiterated that the United States does not torture.
At the same time, he moved away from the discredited terminology of the Bush administration. In January, the Associated Press reported that, with a sole exception, Obama had not uttered the term "war on terror" since assuming the presidency. "Obama has made it clear in his first days in office that he is … making what is at least a symbolic shift away from the previous administration's often more combative tone," it reported.
Then, last week, the Obama administration announced that it was getting rid of the label Bush used to brand terrorism suspects -- good news, it would seem, if it weren't for the context: "The Obama administration said Friday that it would abandon the Bush administration's term 'enemy combatant' as it argues in court for the continued detention of prisoners at Guantánamo Bay, Cuba, in a move that seemed intended to symbolically separate the new administration from Bush detention policies," reported William Glaberson of the New York Times.
But in a much anticipated court filing, the Justice Department argued that the president has the authority to detain terrorism suspects there without criminal charges, much as the Bush administration had asserted. It provided a broad definition of those who can be held, which was not significantly different from the one used by the Bush administration.
According to the court filing, which was filed in a Washington federal court, "the United States bases its detention authority as to such persons on the Authorization for the Use of Military Force," which grants the president "authority to detain persons who he determines planned, authorized, committed or aided the terrorist attacks that occurred on Sept. 11, 2001, and persons who harbored those responsible for the Sept. 11 attacks. The president also has the authority under the AUMF to detain in this armed conflict those persons whose relationship to al-Qaida or the Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render them detainable."
The AUMF, of course, is the measure passed almost unanimously by Congress one week after 9/11, which granted broad executive powers to the president. The court filing lifts the exact language from the AUMF, which declared that the president "is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed, or aided the terrorist attacks … or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
Applied to Guantanamo, the language is seemingly at odds with Obama's promise to close the prison camp -- not to mention the Supreme Court's landmark decision granting its prisoners habeas corpus rights. But it is not at odds with Obama's official policy on prisoners at Afghanistan's Bagram air base, who, according to his administration, have no right to challenge their detention because, unlike Cuba, Bagram is in an active theater of war (although many of the prisoners held there were captured elsewhere).
So, aside from discarding the term "enemy combatant," what is the real difference between the Obama administration's policy on indefinite detention and Bush's?
"This seems fundamentally consistent with the positions of the prior administration," Steven A. Engel, a lawyer in Bush's Office of Legal Counsel told the Times.
"Mr. Engel added that the term 'enemy combatant' was not the issue. 'The important point is that they recognize that we can detain members of the enemy' during a war, he said."
This position has been articulated by U.S. Attorney General Eric Holder, who nonetheless issued a statement on Friday saying: "As we work toward 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."
But, especially as it remains unclear what, exactly, is "new" in its detention policies, it is long past the point where Americans should take the words of the Obama administration at face value. This may be a challenge in a time when people still camp out to hear Obama speak and marvel that their president has a basic command of the English language. But, as with the announcement that Guantanamo will close (but the U.S. still has the right to keep prisoners there), that the Iraq war will end (except for tens of thousands of "residual forces"), that torture will not occur on his watch (but renditions will continue), as a news headline, the retirement of the phrase "enemy combatant" conceals the most crucial part of the story.
Glenn Greenwald reminded readers on Sunday: "Bush's asserted power to detain as 'enemy combatants' even those people who were detained outside of a traditional 'battlefield' -- rather than charge them with crimes -- was one of the most controversial of the last eight years. Yet the Obama administration, when called upon to state their position, makes only the most cosmetic and inconsequential changes -- designed to generate headlines misleadingly depicting a significant reversal ("Obama drops 'enemy combatant' label") -- while, in fact, retaining the crux of Bush's extremist detention theory."
So is this "a case of old wine in new bottles," as the Center for Constitutional Rights said in a statement released Friday?
For those who spent the Bush years raising hell over the razing of civil liberties, such a declaration is so depressing as to be intolerable. As Greenwald wrote, "the last thing most people want to do is conclude that the Obama administration is continuing the core of that extremism."
"That was why the flurry of executive orders in the first week produced such praise: those who are devoted to civil liberties were, from the start, eager to believe that things would be different, and most want to do everything but conclude that the only improvements that will be made by Obama will be cosmetic ones.
"But it's becoming increasingly difficult for honest commentators to do anything else but conclude that."