It is now well known that the Obama administration has embraced almost all of the Bush administration’s counterterrorism policies without substantial modification. One such policy is military detention without trial. The Obama administration has argued, however, that its legal rationale for military detention is different than the Bush administration legal rationale. State Department Legal Advisor Harold Koh described these differences in a speech last May:
[L]et me note two important differences from the legal approach of the last Administration. First, as a matter of domestic law, the Obama Administration has not based its claim of authority to detain those at GITMO and Bagram on the President’s Article II authority as Commander-in-Chief. Instead, we have relied on legislative authority expressly granted to the President by Congress in the 2001 AUMF.
Second, unlike the last administration, as a matter of international law, this Administration has expressly acknowledged that international law informs the scope of our detention authority. Both in our internal decisions about specific Guantanamo detainees, and before the courts in habeas cases, we have interpreted the scope of detention authority authorized by Congress in the AUMF as informed by the laws of war.
I believe this statement is right in one respect, wrong in another, and misleading in a third.