No More “Enemy Combatants”

In a court filing in a case in which detainees are challenging their detention under last year’s Boumediene decision, the Obama Department of Justice has submitted a new standard for the government’s authority to hold Guantanamo detainees.

The Obama administration said Friday that it is abandoning one of President George W. Bush’s key phrases in the war on terrorism: enemy combatant The Justice Department said in legal filings that it will no longer use the term to justify holding prisoners at Guantanamo Bay.

But that’s [sic] won’t change much for the detainees at the U.S. naval base in Cuba — Obama still asserts the military’s authority to hold them. But his Justice Department says that authority comes from Congress and the international laws of war, not from the president’s own wartime power as Bush had argued.

Essentially, the Obama administration is arguing that the authority to hold the detainees based on the 2001 Authorization for the Use of Military Force (AUMF) passed by Congress in the wake of the 9/11 attacks. From the e-mailed brief:

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks.

The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.

It comes down to what “substantially supported” means in the eyes of the Obama Justice Department, and that wasn’t clearly defined in the brief. As of yet, according to the AP article, civil rights activists are skeptical.

In their lawsuits, detainees have argued that only those who directly participated in hostilities should be held.

“The argument should be rejected,” the Justice Department said in its filing. “Law-of-war principles do not limit the United States’ detention authority to this limited category of individuals. A contrary conclusion would improperly reward an enemy that violates the laws of war by operating as a loose network and camouflaging its forces as civilians.”

Retired Army Lt. Col. Stephen Abraham, a former Guantanamo official who has since become critical of the legal process, said it’s a change in nothing but semantics.

“There’s absolutely no change in the definition,” Abraham said in a telephone interview. “To say this is a kinder more benevolent sense of justice is absolutely false. … I think the only thing they’ve done is try to separate themselves from the energy of the debate” by eliminating Bush’s phrasing.

The ACLU’s Jonathan Hafetz adds:

While it is positive that the new administration has re-considered and narrowed the definition of an “enemy combatant,” the new definition is way too broad and, in critical respects, reflects a continuation of the prior administration’s wrongheaded and illegal detention policy.  In particular, it continues to treat terror suspects as a military, rather than criminal justice matter, and to claim the authority to seize and detain individuals captured beyond the battlefield indefinitely and without charges.

The substance of this change will be proven by how the administration moves forward in resolving the cases of the Guantanamo detainees. From an e-mailed press release from the administration:

In its filing today, the government bases its authority to hold detainees at Guantanamo on the Authorization for the Use of Military Force, which Congress passed in September 2001, and which authorized the use of force against nations, organizations, or persons the president determines planned, authorized, committed, or aided the September 11 attacks, or harbored such organizations or persons.  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.

There are numerous detainees held based on “insignificant or insubstantial support” of terrorism, so this new definition should argue for their immediate release. It should provide even more impetus for the administration to step up the process of closing Guantanamo and providing a clear, legal process for dealing with the detainees.

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