WSJ Editorial Page: Prisoners of W--

Prisoners of W--. WSJ Editorial
WSJ, Mar 18, 2009

By now, President Obama's lather-rinse-repeat approach to the legal war on terror is familiar: He lambastes his predecessor, then makes cosmetic changes that leave the substance of Bush policy intact. But Mr. Obama's decision last week to renounce the term "enemy combatant" is almost a parody of this method, given that the "new standard" for detaining terrorists is identical to the old one.

Strunk & White counseled simplicity in prose, so whoever wrote the Justice Department's filing with the D.C. District Court learned his elements of style elsewhere. To avoid using enemy combatants, we instead get "individuals captured in connection with armed conflicts and counterterrorism operations," or "members of enemy forces," or "persons who [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for the September 11 attacks."

These gyrations are bizarre because the brief is actually a solid legal argument for detaining e---- c---------. Justice argues that the U.S. has the right to hold indefinitely, without legal charges, those who "substantially supported" al Qaeda or the Taliban, reserving the right to define what qualifies as "substantial" in each case. It also extends its writ to people who support terror networks away from the battlefield, such as financiers.

The concept of the unlawful enemy combatant is deeply rooted in international law and custom, including the Geneva Conventions. It refers to those who violate the laws of war by killing civilians or fighting out of uniform, and thus are not entitled to prisoner-of-war status. The Justice brief cites the Supreme Court's 2004 Hamdi decision, in which a plurality of Justices held that capture and detention is "so fundamental and accepted an incident to war" as to be an afterthought.

The one difference between the Bush and Obama detention standards concerns core executive powers. The Obama team argues that its authority flows from the Authorization for the Use of Military Force Act, which Congress passed after 9/11 and authorizes the President to use "all necessary and appropriate force" to prosecute "nations, organizations, or persons" associated with the attack. Here, again, there is less than meets the eye. Bush lawyers also cited this act of Congress, but in addition they asserted inherent war power under the Constitution.

Eric Holder's Justice Department does not assert Commander in Chief prerogatives, but it doesn't disavow them either. Justice knows it doesn't need the argument given Hamdi and that it appeases the anti-antiterror left not to echo every Bush claim. The risk is that Mr. Obama could one day face a more isolationist GOP Congress, run by a Tom DeLay or a Senator William Borah that is unwilling to endorse the President's national-security policies. Then Justice will not be able to cite its own precedents as the courts intrude on executive war powers.

We're delighted that Mr. Obama has come around on one of the most rancorous controversies of the last eight years. Even so, Mr. Obama's supporters must be suffering some kind of post-traumatic stress disorder, because on the range of Bush antiterror policies that Mr. Obama has largely preserved -- interrogation, surveillance, rendition, state secrets, now detention -- no one seems to be vilifying him with the same intensity. Or maybe the problem with President Bush's policies was that they were President Bush's policies.