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Obama Drops Enemy Combatant Term in Guantanamo Cases
By James Rowley (14/03/2009)

March 13 (Bloomberg) - The Obama administration dropped President George W. Bush’s term “enemy combatant” for suspected terrorists seized after the Sept. 11 attacks and narrowed the definition of who can be detained at Guantanamo Bay, Cuba.

In a court filing today, the

Justice Department revised the Bush administration’s claim of authority to detain people who were “part of or supporting forces engaged in hostilities against the United States or its coalition partners.” The new language said people can be held if they “substantially supported Taliban or al-Qaeda forces” or their associates.

Human-rights activists, who had criticized the Bush administration’s standard as too broad, said the change was merely cosmetic. They had criticized the Bush definition as allowing indefinite detention of anyone suspected of posing a threat to the U.S. in the war against terrorism. More than 240 detainees remain at the Guantanamo naval base.

The new language was sought by a federal judge in Washington overseeing a challenge by group of Guantanamo prisoners to their detention. U.S. District Judge

John Bates gave the government until today to “refine” its definition of enemy combatant for proceeding with the litigation.

Like its predecessor, the Obama administration said the president’s authority to hold people is derived from the resolution passed by Congress after the 2001 al-Qaeda attacks that authorized the use of military force. This “detention authority” is also “informed by principles of laws of war,” government lawyers said.

Broad Authority

In an Oct. 22 Justice Department brief, the Bush administration argued that the laws of war didn’t limit the president’s broad authority conferred by the 2001 resolution. It also asserted that he possessed the power as commander-in-chief to detain enemy combatants.

In a declaration attached to today’s papers, Attorney General

Eric Holder told the court that the Obama administration was reviewing the policies used to hold the detainees. He said the administration would “promptly” determine “the appropriate disposition of detainees held there.”

As a new detainee policy is developed, the U.S. must “operate in a manner that strengthens our national security, is consistent with our values and is governed by law,” Holder said in a statement. “The change we’ve made today meets each of those standards and will make our nation stronger.”

Human rights groups that represent Guantanamo Bay detainees criticized the new definition.

‘Half-Step’

The American Civil Liberties Union’s executive director,

Anthony Romero, called the new language “a half-step in the right direction” that preserves “an overly broad definition” of people the U.S. can detain.

The New York-based

Center for Constitutional Rights, which represents Guantanamo Bay detainees, said in a statement, “The government continues to confuse the right to use military force with the right to detain terror suspects indefinitely.”

The new administration undertook the review as part of the order President

Barack Obama issued within days of taking office to close the Guantanamo Bay prison camp within a year. The review also includes a study of whether to scrap the military tribunals the Bush administration used to try some detainees for war crimes.

As a presidential candidate, Obama has criticized the tribunals as procedurally flawed. Defense lawyers and human- rights groups argued that the tribunals denied accused detainees the right to properly defend themselves. The administration is studying whether to try detainees in federal court, military courts-martial or a revised form of the tribunals.

Court Challenges

More than 200 of the Guantanamo Bay prisoners filed petitions in federal court in Washington to challenge their incarceration.
Those petitions gained new legal force last June when the Supreme Court ruled that Guantanamo Bay detainees had a constitutional right to challenge their incarceration in court.

Stephen Abraham, a retired Army reserve lieutenant colonel who served on Guantanamo tribunals that reviewed inmates’ status, said, “there is absolutely no difference between the new and old definitions.” The enemy combatant term was “discarded because it is no longer necessary,” Abraham said in an e-mail.
The Justice Department didn’t define what would count as “substantial support” of terrorist groups that would qualify someone for detention. It said the definition will have to be developed in individual cases.

That amounts to an assertion by the Obama administration that “we will decide on a case-by-case basis whether a person’s conduct was ‘substantial,’” said Abraham, a lawyer and former Army intelligence officer.