"Enemy Combatants" .... the backstory

No More “Enemy Combatants” at Guantanamo
[Andy McCarthy - the Corner]


As usual Ed hits the nail on the head. I'll have more to say about all this in Tuesday's column — I'm flying to California later today, I'll be out there all week, so I am madly trying to pack and get outa here. But what is going on here is what's been going on since the first day of the Obama administration.

Obama wants to have the advantage of — and take credit for the security provided by — the Bush post-9/11 policies. However, he has a rabid left-wing base that rejects the notion that there is a war and wants terrorism returned to the courts (and by the way, if/when that happens, that base will immediately go back to arguing that the court proceedings are inherently unfair, which is what it did for the eight years before 9/11). Throughout the campaign, Obama stirred this base — which consequently voted in droves for him — by trashing the policies he now wants to leave in place. So now he is in a quandary: "How do I keep these policies while preventing a revolt from these crazy people — er, I mean, my voters?"

What Obama, Holder & Co. have done on "enemy combatants" is a somewhat more elaborate version of what they've done on Gitmo, rendition, state-secrets, interrogations, etc. Call it, as the editors of NRO have called it, "Change George Bush Could Believe In."

Essentially, we're no longer going to call our captives "enemy combatants" ... but we're still going to detain people without trial, and Obama claims the unilateral authority to decide who gets detained.

We're no longer going to rely on the President's Article II authority to detain these enem — er, whatever we're calling them (how about "undocumented freedom fighters"?) ... but we're not saying there is no such authority either — and meantime, we're relying on Congress's post-9/11 authorization to use military force and on international law principles that, under these circumstances, are so overwhelmingly valid that Article II is just icing on the cake (notwithstanding that it was our basis throughout the campaign for saying that George Bush was destroying the Constitution and the United States).

And we're going to tell everyone that, because we're much more careful vetters than that bad old administration, we're only going to hold onto undocumented freedom fighters who provided substantial assistance to al Qaeda ... even though we realize that this is exactly what that bad old administration meant, and did, when it held people who it said had provided plain old assistance to al Qaeda. (And, by the way, Obama reserves to himself the power to decide what constitutes substantial).

In sum, Bush's policies are validated, and Obama is banking that his base will be content with a few rhetorical crumbs. Of course they won't be — the ACLU, which is crazy but not stupid, is already blasting this move. That being the case, what I continue to be very concerned about is the likelihood that Obama — to meet or at least be close to his ill-considered one-year deadline for closing Gitmo — will start releasing droves of the remaining 240+ undocumented freedom fighters to countries where they will promptly rejoin the jihad. And, yes, I know we're not supposed to say jihad like it's a bad thing either, but I just don't think what these guys will be rejoining is an internal struggle for personal betterment.

http://article.nationalreview.com/?q=NTNiMjQzODZiNWIwMDk2MjkwZmEyNmU5ZjYxYmYzNWY=


http://aclu.org/safefree/detention/39012prs20090313.html


Justice Department Adheres To Key Elements Of Bush Administration Detention Policy (3/13/2009)

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

NEW YORK – In a court filing today, the Obama administration argued that detention of prisoners held at Guantánamo is justified even if the individual is captured far from any battlefield and has not directly participated in hostilities. According to the definition offered in the government's brief, individuals who provide "substantial" support to al-Qaeda or the Taliban can be detained.

The following can be attributed to Anthony D. Romero, Executive Director of the American Civil Liberties Union:

"It is deeply troubling that the Justice Department continues to use an overly broad interpretation of the laws of war that would permit military detention of individuals who were picked up far from an actual battlefield or who didn't engage in hostilities against the United States. Once again, the Obama administration has taken a half-step in the right direction. The Justice Department's filing leaves the door open to modifying the government's position; it is critical that the administration promptly narrow the category for individuals who can be held in military detention so that the U.S. truly comports with the laws of war and rejects the unlawful detention power of the past eight years."