Enemy Combatants No Longer Exist?

In legal papers filed on Friday the 13th, the U.S. Justice Department declared the term "enemy combatant" null and void and indicated that it will evaluate the detention of individuals at Guantanamo on a case-by-case basis:

In a filing today with the federal District Court for the District of Columbia, the Department of Justice submitted a new standard for the government’s authority to hold detainees at the Guantanamo Bay Detention Facility. The definition does not rely on the President’s authority as Commander-in-Chief independent of Congress’s specific authorization. It draws on the international laws of war to inform the statutory authority conferred by Congress. It provides that individuals who supported al Qaeda or the Taliban are detainable only if the support was substantial. And it does not employ the phrase "enemy combatant."… The government’s new standard relies on the international laws of war to inform the scope of the president’s authority under this statute, and makes clear that the government does not claim authority to hold persons based on insignificant or insubstantial support of al Qaeda or the Taliban.

The Washington Post says that this is merely symbolism with no real substantive change:

Though dropping the term "enemy combatant" was a symbolic break from the Bush administration, the practical effects of yesterday's action will not be known for months...Legal scholars and those representing detainees said that dropping the term "enemy combatant" was important but that the rest of the legal arguments may not change much about the nation's detention policy. Robert M. Chesney, an expert on national security law at Wake Forest University, said the changes would affect detainees "at the margins."

"They've changed the label, but the substance has changed only a little bit," Chesney said

Time will tell. The actual legal ramifications of this perhaps cosmetic change in terminology remain to be seen. However, as a practical matter, how does the government plan define "significant or substantial support" when it comes to these holding these actors in prison? We're getting the increasing sense that anti-terrorism and homeland security initiatives going forward will be more like a marketing campaign or perhaps even a law school hypothetical. Moreover, do we want the safety and security of the American people based on vague or theoretical notions of international law (given that international law has itself often been dubbed an oxymoron)? And this particular story about a Justice Department nominee does little to increase the confidence level in the new administration's counter-terrorism efforts.

In his book, Judge Posner suggests the following:

Civil libertarians are not always careful about history, perhaps because most of the rights they defend have no solid historical anchor, or perhaps because the lawyer's attitude toward history is a manipulative one (a tendency as pronounced on the legal Right with its "originalist" fantasies, as on the Left)…Civil Libertarians neglect genuine lesson of history: than the greatest danger to American civil liberties would be another terrorist attack on the United, even if it was on a smaller scale than the 9/11 attacks…

More important than the one-sidedness of the civil libertarians' historical narrative is the assumption that the past is a good guide to the future…The past does not include attacks on the United States by terrorists wielding nuclear bombs, dirty bombs, biological weapons capable of killing millions of people, or other weapons of mass destruction…We must not emulate the Bourbon kings, who learned nothing and forget nothing. Or, as another saying goes, if we want things to say the same, things will have to be different. Those who believe that since we survived decades of confrontation with the Soviet Union unscathed we have nothing to fear from a handful of terrorists are looking backward rather than forward.

Just as an aside, the inclusion by Judge Posner of that fascinating old saying about things must change to stay the same serves as a key line in the classic Luchino Visconti epic The Leopard starring Burt Lancaster as an Italian prince in a time of great social and political upheaval in that country known as the "Risorgimento." That important line of dialogue in the film was in turn taken from original novel authored by Giuseppe Tomasi Di Lampedusa.