Crossposted at Huffington Post.
News outlets proclaimed the end of an era earlier this month as the Justice Department filed a brief in federal court that dropped the use of the term "enemy combatant" from its description of those who may legally be detained at Guantánamo Bay. One wonders if the reporters read the rest of the brief. The real story here is not that the words have changed; it's that much of the substance -- in particular, the disturbingly overbroad view of who may be detained under the laws of war -- remains the same.
There were three controversial aspects to Bush's use of the term "enemy combatant." First, it signified that the government was treating international terrorism, at least in certain contexts, as an act of war rather than a "mere" crime. But that ship sailed long ago... and the Obama administration is unquestionably on board. The Justice Department's brief reiterated Obama's position that we are at war with al Qaeda and the Taliban, and that the laws of war justify the detention of terrorism suspects at Guantánamo.
Among those familiar with the international laws of war (known as "international humanitarian law" or "IHL"), the term "enemy combatant" was controversial for a different reason. Under IHL, the term "combatant" applies only to members of regular state forces, not to members of irregular forces like al Qaeda. While IHL provides for the detention of combatants and even some civilians in conflicts between state actors, it provides no guidance regarding who may be detained in conflicts involving non-state actors - leaving the issue entirely to domestic law. By using the term "combatant," Bush invoked the framework of war between state actors, thus implying a legal justification for the detention of al Qaeda fighters that doesn't exist.
But here, too, there is no difference in substance between the Bush and Obama approaches. While the Justice Department brief does not use the specific term "combatant," it nonetheless expressly relies on the international laws of war applicable to state actors in concluding that certain terrorism suspects, described in the brief as "enemy forces," may be detained for the duration of the conflict. Having thus deemed the Guantánamo detainees the legal and functional equivalent of "combatants," the administration's preference for the term "forces" is, at best, meaningless. At worst, it is a strategic attempt to avoid a term ("combatant") that so vividly highlights the mismatch between the legal justification being employed and the people actually being detained.
Which leads to the third controversial aspect of the term "enemy combatant" -- and the most troubling similarity between the Bush and Obama approaches. Bush had claimed that "combatants" encompass not just those who are fighting against the U.S., but those who "support" them, whether financially, logistically, or otherwise. In its recent brief, the Obama administration adopted the Bush administration's definition almost verbatim to describe the "enemy forces" who may be detained for the duration of the conflict under the laws of war.
Even if one were to accept that the laws governing war between state actors apply here, the Bush and Obama definitions go squarely against those laws. "Combatants" under IHL include only those who "participate directly in hostilities." Those who do not participate directly - including supply contractors and service units - are considered "civilians," not combatants, however great their contribution to the war effort. The Bush and Obama definitions collapse that distinction. Under their definitions, as NYU law professor Stephen Schulhofer has pointed out, Rosie the Riveter would have been deemed a "combatant" (or, per Obama's approach, the legal equivalent) in World War II.
Why does this matter? Because unlike Obama's preference for the term "enemy forces" over "enemy combatants," the distinction between combatants and civilians -- a distinction that the International Committee of the Red Cross describes as "the cornerstone" of the laws of war -- carries real consequences.
For one thing, it affects the proper standard for detention. Under the Fourth Geneva Convention, civilians may be detained only if "the security of the Detaining Power makes it absolutely necessary," and they must be released "as soon as the reasons which necessitate [their] internment no longer exist." No such limits apply in the case of combatants, who may be detained for the duration of the war simply by virtue of their combatant status.
Some Americans may be unfazed by a definitional expansion that makes it easier to detain civilians for longer. But a lower standard for detention is just one of the consequences of treating someone as a "combatant." Under the laws that apply to conflicts between state actors, "combatants" are subject to lethal military attack without so much as a combatant status review tribunal, let alone due process. The laws that apply to conflict with irregular forces like al Qaeda import a similar principle, allowing military attacks on those who "participate directly in hostilities." If those who merely "support" al Qaeda are deemed the legal equivalent of "combatants" under IHL, then the United States is entitled to launch a military strike against a person believed to have written a check to an al Qaeda affiliate -- and the German government would have been entitled to launch a military strike against Rosie the Riveter.
How does the Obama administration justify this approach? The Justice Department brief claims that maintaining a distinction between those who participate directly in hostilities and those who do not "would improperly reward an enemy that violates the laws of war by operating as a loose network and camouflaging its forces as civilians." But that is exactly backwards. The "direct participation" standard is the very thing that allows us to distinguish those who may properly be targeted in war from those who may not. Eliminating that standard simply makes us a partner in al Qaeda's illegal attempt to blur the line -- penalizing those whom the laws of war are meant to protect.
There is one substantive distinction between Bush's definition and Obama's: Obama considers those who support al Qaeda or the Taliban to be members of enemy forces (and the legal equivalent of combatants) only if their support is "substantial," thus excluding persons whose support is "unwitting or insignificant." Certainly, it is a step in the right direction that the President of the United States no longer claims the right to detain indefinitely a person who gives a few dollars to a religious charity without knowing that the charity funnels money to al Qaeda. And if the administration takes the term "substantial" seriously, that could significantly reduce the number of people improperly detained. Nonetheless, under the laws of war Obama purports to apply, the relevant distinction is not the level of support given, but whether there is direct participation in hostilities. That fundamental principle is missing from Obama's definition.
Obama has ordered the closure of Guantánamo by the end of the year. Let's hope he follows through. But the questions of categorization posed by Guantánamo -- including the question of who may be treated as the legal equivalent of a "combatant" -- will retain their significance long after the doors to that facility are shuttered. Obama has not ordered the closure of Bagram or other overseas military facilities, and he certainly has not ordered the end of military attacks. That's why it's critically important that we get the answers to these questions right. News flash: we're not there yet.