WASHINGTON – The Obama administration on Friday abandoned two key aspects of former President George W. Bush’s policies on suspected terrorists, setting off 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 the 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.”
The American Civil Liberties Union 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.”
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 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.”