The Big Change in Obama's Position on Detention Authority

The Obama administration has come under fire for its "refined" position on its authority to detain individuals in the war on terror, filed with the U.S. District Court in D.C. last week.  (I posted on this, with a link to the administration's filing, here.)  Critics charge that the administration's definition of detainable individuals is the same in all but name as the Bush administration's definition; the Obama administration merely omits the Bush-created label "enemy combatant."

The WSJ posts an opinion piece today making just this claim (thanks to Israel Balderas for the tip):

By now, President Obama's lather-rinse-repeat approach to the legal war on terror is familiar: He lambastes his predecessor, then makes cosmetic changes that leave the substance of Bush policy intact.  But Mr. Obama's decision last week to renounce the term "enemy combatant" is almost a parody of this method, given that the "new standard" for detaining terrorists is identical to the old one.

But these arguments miss the larger change in the administration's refined policy: The Obama administration, unlike the Bush administration, said it will abide by U.S. and international law. 

The administration's memo reflecting its refined position and filed last week in federal court startswith the Congressional Authorization for Use of Military Force and with principles of international law.  The administration derives its detention authority--and also cabins its detention authority--based on those sources alone.  As the WSJ notes, the memo reads like a "solid legal argument" for detaining enemy combatants.  But the argument is based upon Congressional authorization (in the AUMF) and international law.

More to the point: The administration's position means that it intends to adhere to U.S. law, the Congressionally imposed parameters in the AUMF, and international law.

The Bush administration, in stark contrast, specifically disclaimed these sources as limits on the President's inherent Commander-in-Chief authority under Article II.  The Bush administration time and again asserted inherent executive authority to capture, detain, and treat (and mistreat) anyone--here or abroad--as an enemy combatant, without regard to U.S. law, the AUMF, and international law. 

The WSJ and others minimize this substantial difference by saying that the Bush administration, too, claimed authority under the AUMF.  But this was always the Bush administration's second, alternative argument--a kind of safe haven if its extraordinary claims of inherent executive authority didn't work out.  Its first and primary position was always that the President possessed inherent Commander-in-Chief authority, irrespective of U.S. and international law.

So while Obama's refined definition of detainable individuals may look an awful lot like the Bush administration's definition of enemy combatant, this glosses over the more significant change in policy: The Obama administration anchored its definition in U.S. and international law.

As I wrotelast week, the real test of the differences will come in the Obama administration's practices.  Last week's court filing is a first word from the new administration, but it's by no means the final word.  Let's see how the habeas cases and the administration's review of detention policy play out.

SDS