Obama administration ‘refines’ its detention authority to hold prisoners in Guantanamo

The refining came in a court filing by the Justice Department in response to orders by federal judges, who sought clarity on the government’s legal justification for holding about 241 detainees at the military prison at Guantanamo Bay. These judges are dealing with several habeas cases brought by numerous detainees at Guantanamo who are challenging their detention under the Supreme Court’s decision last summer in Boumediene v. Bush.”The definition of the central legal term ‘enemy combatant’ is not a moving target, varying from case to case, and the court intends to rule on that definition before the parties reach a critical point in these proceedings,” Judge John D. Bates wrote in a February order seeking the Justice Department’s definition. At least two other judges had requested the government to provide them with the same definition by yesterday. Another judge, Richard J. Leon, last year applied the “enemy combatant” definition used by the military, which required officials to find only that a detainee supported the Taliban, al-Qaeda or associated groups.

Read the document here.The key paragraph reads as follows:

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.

Compare the Bush administration’s definition of the concept of ‘enemy combatants’ in January:

The President’s power to detain includes the ability to detain as enemy combatant those individuals who were part of, or supporting, forces engaged in hostilities against the United States or its coalition partners and allies.  This includes individuals who were part of or directly supporting Taliban, al-Qaida, or associated forces, that are engaged in hostilities against the United States, its coalition partners or allies. This also includes any persons who have committed a belligerent act or supported hostilties in aid of enemy forces.

Enemy combatants without the label…?
The Department of Justice was quick to emphasize that the Obama administration had discarded the term ‘enemy combatant’ and

  • no longer relies on the the President’s authority as Commander-in-Chief independent of Congress’s specific authorization
  • draws on the international laws of war to inform the statutory authority conferred by Congress

CCR was very disappointed and said that “this really is a case of old wine in new bottles”.

Whether in interpreting the laws of war or the AUMF, the government continues to confuse the right to use military force with the right to detain terror suspects indefinitely. It is still unlawful to hold people indefinitely without charge. The men who have been held for more than seven years by our government must be charged or released.

ACLU was equally worried:

“It is deeply troubling that the Justice Department continues to use an overly broad interpretation of the laws of war that would permit military detention of individuals who were picked up far from an actual battlefield or who didn’t engage in hostilities against the United States. Once again, the Obama administration has taken a half-step in the right direction. The Justice Department’s filing leaves the door open to modifying the government’s position; it is critical that the administration promptly narrow the category for individuals who can be held in military detention so that the U.S. truly comports with the laws of war and rejects the unlawful detention power of the past eight years.”

… some changes…?

Scotus outlines the small changes:

First, the new version requires proof of “substantial” support of Taliban or Al-Qaeda forces, while the former version required proof of “direct” support of such forces.Second, the new version requires proof of “substantial” support of forces (other than Taliban or Al-Qaeda) engaged in hostilities against the U.S. and its coalition partnes, while the former version only required “support.”

And, third, the new version applies to a person who “directly” supported hositilities to aid enemy armed forces, while the former version only required “support” of such hostilities, and did not include the word “armed” as to enemy forces who had been supported.

The Department of Justice is keen to stress in its press release that now:

1) The President’s authority to hold detainees does not rely on the President’s authority as Commander-in-Chief,, but by the statute passed by Congress in the wake of September 11, 2001 – the Authorization for the Use of Military Force (AUMF).

2) This administration seem to take international law more seriously (?) by saying that “the meaning (and limits) of the AUMF is “necessarily informed by principles of the laws of war.”

However, the document clearly rejects suggestions of detainees’ lawyers who said that the government would only be allowed to detain those who took “direct part in hostilities”. The Obama administration embraced the war-paradigm and said:

“Law-of-war priniciples do not limit the Untied 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.”It also contended that “it is of no moment that someone who was part of an enemy armed group when war commenced may have tried to flee the battle or conceal himself as a civilian in places like Pakistan.”

And: The AUMF is not limited to persons captured on the battlefields of Afghanistan. Under a functional analysis, individuals who provide substantial support to al-Qaida forces in other parts of the world may properly be deemed part of al-Qaida itself. Such activities may also constitute the type of substantial support that, in analogous circumstances in a traditional international armed conflict, is sufficient to justify detention.

“This seems fundamentally consistent with the positions of the prior administration,” said Steven A. Engel, who was a senior lawyer responsible for detainee issues in the Justice Department’s Office of Legal Counsel until the final day of the Bush administration in The New York Times.

Mr. Engel added that the term “enemy combatant” was not the issue. “The important point is that they recognize that we can detain members of the enemy” during a war, he said.

…or just the best we could hope for ?

Deborah Pearlstein on Opinion Juris says that

In undertaking the necessary task of resolving these impossible cases, it seems to me the administration’s brief should be read as an effort to do as little further violence to the law on the books as possible. In insisting the question of substantial support be resolved on a case by case basis, it is trying to avoid letting these hard Gitmo cases make bad law across the board going forward. Under the unique circumstances here, that is perhaps the best we can hope.

None of the 13 District judges handling the Guantamo cases in Washington is bound by the definition laid out in the government’s new version.  They may decide, on their own, what detention authority exists, and decide particular detainees’ cases on it. The Department also submitted a declaration by Attorney General Eric Holder stating that, under executive orders issued by President Obama, the government is undertaking an interagency review of detention policy for individuals captured in armed conflicts or counterterrorism operations as well as a review of the status of each detainee held at Guantanamo. The outcome of those reviews may lead to further refinements of the government’s position as it develops a comprehensive policy.

More on Scotus, Opinio Juris, and The Washington Post. More reactions at the Miami Herald. Excellent analysis at EJIL talk.

6 Responses

  1. […] administration as ‘enemy combatants.’ (Analysis by Deborah Pearlstein at OJ; more from the Lift). The brief now outlines the administration’s official position on the legal basis of the […]

  2. The Obama Administration’s newly crafted claim of government power to detain terrorism suspects underwent its first courtroom test on the 24th of March, and appeared likely to get at least qualified endorsement by at least one judge. A two-hour hearing in U.S. District Court focused mainly on what Congress meant nearly eight years ago in its first response to the 9/11 terrorist attacks, and on what the Supreme Court meant in 2004 in its first ruling in a modern detention case (Hamdi v. Rumsfeld).

    More here:http://www.scotusblog.com/wp/first-test-of-obama-detention-doctrine/

  3. […] to define that authority. The result was that the Obama Administration’s position — a “refined” version of the Bush Administration approach – won its first full-scale test in a federal […]

  4. […] back with arguably a more modest version of the Bush position. (All details about that court filing here.) The NYT reports: But behind closed doors, the debate flared again that summer, when the Obama […]

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