Saturday, March 14, 2009

Obama, Justice Deptarment: Still Denying Geneva Conventions...More Orwellian Than Bush?

A long one-pager in the Times today on Obama's elimination of the term "Enemy Combatant" while continuing to support the practice the term describes.

Note the following:

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.


"But the Department of Justice filing portrayed the adjustment of the government’s position in expansive terms. In a public statement accompanying its filing, the department said the government’s position had been devised to adhere closely to the requirements of the international law of war, longstanding principles that permit enemy fighters to be held until the completion of hostilities."

The administration continues to claim the President has the right to hold people without any criminal charges (although it no longer has a pet term for those people) and it continues to deny the rights accorded under the Geneva Convention to those people.

There is however a possibly significant change here. Justice now attempts to ground this Bush/Obama policy not in the claim of Presidential power to name a person as an enemy combatant, but instead on upon language in the 2001 AUMF. This leaves challengers open to question the Constitutionality of recent Congressional language (the AUMF). Previous challenges had to be founded on the Constitutional question of the President's ability to name a person an "enemy combatant", an act that has much longer historical prescident. Its possible that this change has accidentally increased the chances for those we once called detainees to sucessfully challenge thier detention.

For a lot more on this manuever check out Marcy at Emptywheel.

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