Guantanamo: Obama continues Bush policies
Richard Moore
But in a much anticipated court filing, the Justice Department argued that the president has the authority to detain terrorism suspects there without criminal charges, much as the Bush administration had asserted. It provided a broad definition of those who can be held, which was not significantly different from the one used by the Bush administration.
U.S. Won’t Label Terror Suspects as ‘Combatants’
The Obama administration said Friday that it would abandon the Bush administration’s term “enemy combatant” as it argues in court for the continued detention of prisoners at Guantánamo Bay, Cuba, in a move that seemed intended to symbolically separate the new administration from Bush detention policies.
But in a much anticipated court filing, the Justice Department argued that the president has the authority to detain terrorism suspects there without criminal charges, much as the Bush administration had asserted. It provided a broad definition of those who can be held, which was not significantly different from the one used by the Bush administration.
The filing signaled that, as long as Guantánamo remains open, the new administration will aggressively defend its ability to hold some detainees there.
“The president has the authority to detain persons” who planned or aided the 2001 terrorist attacks as well as those “who were part of, or substantially supported, Taliban or Al Qaeda forces,” administration lawyers wrote.
The Obama administration said it was relying on existing principles of the international law of war. A public statement indicated that the government was moving away from claims of expansive executive power often used by the Bush administration to justify Guantánamo.
The new administration took pains to try to point out that it was taking a different approach. It said the new definition “does not rely on the president’s authority as commander in chief” beyond the powers authorized by Congress. The filing, in Federal District Court in Washington, was meant to provide a definition of those detainees who can be held and bitterly disappointed critics of Guantánamo, who said it seemed to continue the policies they have criticized for more than seven years.
It was the latest example of the Obama administration’s taking ownership of Guantánamo, even after having announced it would close the prison, where 241 men remain.
“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.
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.
The new administration’s position had been the subject of wide speculation before a court deadline Friday for the administration to tell federal judges what definition it believes the courts should use in the habeas corpus cases reviewing detainees’ cases. Some detainees’ lawyers had hoped for a much narrower definition, perhaps one that would have eliminated simply “supporting” the Taliban or Al Qaeda as a ground for detention.
Such a change, some of the detainees’ lawyers had predicted, could have undercut the government’s justification for holding as many as half of the remaining prisoners, including jihadists captured in Afghanistan who never fought the United States and others who the government has indicated may have had only tangential ties to Al Qaeda or the Taliban.
The new definition did add a requirement that to justify detention a detainee would have to have “substantially supported” Al Qaeda, the Taliban or forces associated with them. But the administration did not define “substantial,” and the detainees’ lawyers said they doubted that the change would help many of their clients.
The filing, which was made in some 40 habeas corpus cases of detainees’ challenging their imprisonment, is expected to be the government’s position in more than 200 such cases and to govern a separate review of all cases outside of court that has been ordered by President Obama.
Some critics of Guantánamo said that Friday’s filing fitted a pattern of recent moves by the administration that seemed intended to undercut continued criticism of Guantánamo but did not make significant changes in detention policy.
They noted that after Attorney General Eric H. Holder Jr. visited the detention camp last month, he proclaimed it “well run.” They said they had been stung as well by a Pentagon report commissioned by the new administration that said last month that the detention camp on the naval base at Guantánamo Bay meets the humane-treatment requirements of the Geneva conventions.
Ramzi Kassem, a detainees’ lawyer who teaches at Yale Law School, said Friday that the new administration had yet to deal effectively either with efforts to release many of the detainees or to improve the conditions at the camp.
Mr. Kassem said the filing Friday was an additional indication that the new administration had yet to grapple with the complexities of Guantánamo or the detainees’ cases. “I think they may be very much under the influence of the rhetoric of the outgoing administration,” he said.
But the Department of Justice filing portrayed the adjustment of the government’s position in expansive terms. In a public statement accompanying its filing, the department said the government’s position had been devised to adhere closely to the requirements of the international law of war, longstanding principles that permit enemy fighters to be held until the completion of hostilities.
The Bush administration made those arguments as well, but it also often included extensive assertions of broad executive authority.
Obama administration officials have repeatedly argued in recent months that they intend to make decisions about detention policy that they see as more rooted in legal principles than their predecessors. Although the term “enemy combatant” had been used in a World War II Supreme Court case, critics of the Bush administration said officials used it to permit detentions that would not have been authorized under the international rules of warfare.
In their court filing, Justice Department lawyers repeatedly cited the international law of war and its principle that “capture and detention of enemy forces” is authorized. But the filing made it clear that the Obama administration rejected arguments of detainees’ lawyers that it should sharply depart from many policies of the last seven years.
The government lawyers noted that some detainees’ lawyers had argued that only those detainees who have been alleged to have directly participated in hostilities against American forces should be detained. The law of warfare does not limit the United States’ authority to hold only those with such direct involvement in fighting Americans, the filing said.