I was so angry about the substance of the Obama administration's court filing dealing with detention policy last week that I neglected to note one of the more important changes. While the detention authority claimed by the Obama administration is largely the same as the prior one, with the exception of undefined "substantial" support terrorists as the threshold, the source of that power is different. While the Bush administration maintained that the president had the "inherent" authority to detain terrorist suspects, the Obama administration is drawing this authority from the AUMF. This is important because it acknowledges limits to the president's power, limits the prior administration would not have conceded.
At Balkinization, Rick Pildes offers another important observation:
In marked contrast, the Obama administration continues to look to the laws of war and international law as a source of “permission and obligation” in defining the boundaries of the administration's power to detain. The most striking aspect of the Obama's administration position, in fact, is the pervasive role that the laws of war – the international tradition of governmental authority and its limits during wartime – play in the President's conception of the boundaries on his power. The Obama administration recognizes, as did the Bush administration, that the traditional laws of war were not developed for the context of modern terrorism. But instead of then concluding that those laws are irrelevant, and hence furthering the specter of an unconstrained President, the new President argues that courts should draw on the traditional laws of war for principles and analogies; Obama argues that those laws should be adapted to be applied sensibly in today's context of terrorism, but not ignored.
I understand how that squares with Obama's emphasis on humane and legal treatment of terrorist suspects, but maintaining the authority to hold terrorist suspects captured outside the zone of combat indefinitely as military detainees would seem to violate our some of those international law obligations.
-- A. Serwer
