[Infowarrior] - U.S. Won’t Label Terror Suspects as ‘Combatants’

[Richard Forno]

U.S. Won’t Label Terror Suspects as ‘Combatants’

By WILLIAM GLABERSON
Published: March 13, 2009

http://www.nytimes.com/2009/03/14/us/politics/14gitmo.html?_r=1&hp

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.