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Justice Department set forth basis for detention, abandons term “enemy combatant”

Attorney General Eric Holder with President Obama

Attorney General Eric Holder with President Obama

In a memo filed today with US District Court Judge John D. Bates, the Justice Department set forth its legal basis for detaining persons associated with terrorism and abandoned the use of the term “enemy combatant.” The memo can be found here. The memo states the new framework for detention as follows:

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.

Lyle Denniston over at SCOTUSblog provides an excellent comparison to the Bush Administration’s approach:

Since July 2004, the Bush Administration had been using the designation “enemy combatant” as the basis for holding individuals at Guantanamo Bay, Cuba. Here is how that Administration defined the concept in a court filing in January, shortly before leaving office: ”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 are the differences:

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.

This looks to be a great improvement. More analysis to follow once I have had time to digest the memo.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.