In a filing today with the federal District Court for the District of Columbia, the Department of Justice submitted a new standard for the government’s authority to hold detainees at the Guantanamo Bay Detention Facility. The definition does not rely on the President’s authority as Commander-in-Chief independent of Congress’s specific authorization. It 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.”
But in response to this afternoon’s government filing in multiple Guantánamo cases, the Center for Constitutional Rights (CCR) said “while the new government has abandoned the term “Enemy Combatant,” it appears on first reading that whatever they call those they claim the right to detain, they have adopted almost the same standard the Bush administration used to detain people without charge – with one change, the addition of the word “substantially” before the word “supported.” This is really a case of old wine in new bottles.”
CCR has led the legal battle over Guantanamo for the last six years – sending the first ever habeas attorney to the base and sending the first attorney to meet with a former CIA “ghost detainee” there. CCR has been responsible for organizing and coordinating more than 500 pro bono lawyers across the country in order to represent the men at Guantanamo, ensuring that nearly all have the option of legal representation. In addition, CCR has been working to resettle the approximately 60 men who remain at Guantánamo because they cannot return to their country of origin for fear of persecution and torture.
CCR added that the Obama administration, “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.”
The American Civil Liberties Union agreed. Anthony D. Romero, the ACLU’s executive director, said he is “deeply” troubled 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,” Romero said. “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.”
The Justice 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.
“As we work towards developing a new policy to govern detainees, it is essential that we operate in a manner that strengthens our national security, is consistent with our values, and is governed by law,” said Attorney General Holder. “The change we’ve made today meets each of those standards and will make our nation stronger.”
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.
The brief was filed in habeas litigation brought by numerous detainees at Guantanamo who are challenging their detention under the Supreme Court’s decision last summer in Boumediene v. Bush.
