On March 13, the Obama administration officially abandoned the term “enemy combatant.” In a filing with the DC District Court, the Justice Department said that it will no longer use the term and asserted a new standard for the government’s authority to hold detainees at Guantánamo Bay. The Obama administration is still claiming it has the authority to hold prisoners at Gitmo, but says it will now be based on authority from Congress and the international laws of war. The Bush administration claimed that the president could unilaterally hold prisoners without charge.
The disclosure came in a court filing by the Justice Department in response to orders by federal judges, who demanded clarity on the government’s legal justification for holding spome 241 detainees at Gitmo. The Justice Department said it would seek to hold only suspects who “substantially supported” those groups and not those who “provide unwitting or insignificant support” to al-Qaeda and the Taliban. (WP, March 14; Think Progress, March 13)
Summarizing a memo submitted to the US District Court for the District of Columbia, the Department said in a press release that the new criterion for detention “does not rely on the President’s authority as Commander-in-Chief independent of Congress’s specific authorization” under the Authorization for the Use of Military Force passed by Congress in September 2001. The AUMF 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 Department said the the new standard “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.'” (Jurist, March 15)
However, the Obama administration is trying to protect top Bush administration military officials from lawsuits brought by prisoners who say they were tortured while being held at Guantánamo. The Justice Department argued in a filing with the US Circuit Court of Appeals for the District of Columbia March 12 that holding military officials liable for their treatment of prisoners could cause them to make future decisions based on fear of litigation rather than appropriate military policy. (AP, March 13)
See our last post on the torture/detainment scandal.