Obama's new detainee policy: Break from Bush, or the same?

McClatchy NewspapersMarch 13, 2009 

WASHINGTON — The Obama administration on Friday abandoned two key aspects of former President George W. Bush's policies on suspected terrorists, setting off a wide debate on whether the move undercut the government's rationale for holding at least some of the men who are now detained at the Guantanamo Bay military prison in Cuba or amounted to nothing new.

In a court filing in Washington, the Justice Department dropped the term "enemy combatant" to refer to those being held in Guantanamo. It also said that the government's authority to continue to jail terrorist suspects would hinge on proving that they "authorized, committed or aided" the Sept. 11 attacks or that they "were part of or substantially supported" the Taliban or al Qaida.

Some lawyers said the decision not to use the term "enemy combatant" marked the death knell for military commissions, which Congress established specifically to try Guantanamo detainees. Under federal law, the commissions have authority to try only persons declared "unlawful alien enemy combatants."

Navy Lt. Cmdr. Brian Mizer, who defended Osama bin Laden's driver before such a commission, said Friday's move effectively gave the war court "jurisdiction over a category of persons that doesn't exist." "There is no such thing as an unlawful enemy combatant," he said. "International law has never recognized such a category of persons, and the filing is a welcome sign of America's return to the rule of law and community of nations."

Others said the filing meant the U.S. had no right to hold their clients. Air Force Reserve Maj. David Frakt, an attorney for a young Afghan at Guantanamo, said the new definition means that his client, Mohammed Jawad, gets to go home.

Jawad, now 23, is accused of throwing a grenade in December 2002 that wounded two U.S. soldiers and their translator in a Kabul market. The Pentagon, however, has never alleged that he was associated with either Taliban or al Qaida. Now, Frakt said, the allegations against Jawad amount to "an alleged domestic crime under Afghanistan law. There is no basis for the U.S. military to detain him."

While Amnesty International hailed the filing as "a strong symbolic gesture," other human rights groups said it changed little.

"It appears on first reading that whatever they call those they claim the right to detain, they have adopted almost the same standard (as) the Bush administration . . . with one change, the addition of the word 'substantially' before the word 'supported.'" the Center for Constitutional Rights said in a written statement. "This is really a case of old wine in new bottles."

The American Civil Liberties Union also criticized Friday's filing, calling it "a half-step in the right direction."

"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," ACLU Executive Director Anthony Romero said in a written statement.

That position was echoed by Seattle attorney Joe McMillan, who defended Osama bin Laden's driver, Salim Hamdan, in federal and military courts.

Despite the absence of the term "enemy combatants" in Friday's filing, "the position set forth by the Department of Justice is quite similar to the position adopted by the Bush administration,'' McMillan said. The Obama administration position, he said, "very much contemplates the existence of 'enemy combatants' and justifies detention at Guantanamo on that basis under the laws of war."

Proponents of the continued detention of those held at Guantanamo found themselves on opposite sides of the dispute. Rep. Lamar Smith, R-Texas, the ranking Republican on the House Judiciary Committee, said he was "pleased that the Obama administration decided essentially to affirm the Bush administration's definition of who can be detained."

However, the former commander of the USS Cole, which was attacked by al Qaida, denounced the filing. "The president, in his search for justification to close the Guantanamo Bay detention facility, has now changed and lowered the standards for detaining terrorists; thereby setting the stage to justify their transfer and release," said retired Navy Cmdr. Kirk Lippold.

The Justice Department filing doesn't give the prisoners a specific designation. They aren't described as prisoners of war or enemy combatants, both categories of war prisoners under the Geneva Convention. The Bush administration created the term "unlawful enemy combatant" to remove detainees from the protections of international law.

A Justice Department official said on Friday that, for now, they're just considered "detainees."

At the Pentagon, a spokesman for the Guantanamo war court declined to comment on whether the decision to abandon the term "enemy combatant" would spell an end to military commissions.

"As you know, there are a series of comprehensive interagency reviews of all policies and procedures related to detainees," said commission spokesman Joe Dellavedova. "Until those reviews are complete, it would be inappropriate to comment."

Still, Friday's actions put a little more flesh on the bones of Obama's approach to terrorism suspects, according to some legal experts.

"What's important about it is it's a plan on how they will evaluate Guantanamo detainees and future detainees," said Eugene R. Fidell, who teaches military law at Yale University. "It sets the bar higher than it had been set in the Bush administration."

Obama in January signed an executive order to close Guantanamo within a year and ban the CIA from operating other detention facilities.

Friday's filing seeks more time to unravel the enemy combatant policy that evolved in the Bush administration, and in the courts. Attorney General Eric Holder noted in a separate affidavit that he's leading an effort to close the prison camps in Obama's first year in office.

"The reviews addressing the disposition of detainees at Guantanamo Bay and the vital issue of detention policy are ongoing," Holder wrote. "Important and difficult legal, diplomatic and national security issues are at stake."

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