U.S. defines its claim to detention power
on Mar 13, 2009 at 3:04 pm
The Obama Administration disclosed on Friday that it will no longer claim the power to detain terrorism suspects under the label “enemy combatant,” even while claiming broad authority to detain those who are a part of terrorist networks or who supplied “substantial support” to such forces. The authority, it said, extends to places other than battlefields if Afghanistan, but did not say where else detainees might be seized.
The document cast aside a claim by the former Bush Administration that the President has detention power solely because of his role as Commander-in-Chief.
It told a federal judge that it is “refining” its claim of detention authority, relying on Congress’ resolution passed after the 9/11 terrorist attacks and on “principles of the laws of war.” It proposed a new definition of that authority, for use as Guantanamo Bay prisoners’ habeas challenges moved forward in federal civilian courts. But it said it may alter its detention policies after a wide-ranging, inter-agency review is completed in about six months.
From the congressional resolution, as “informed by” laws-of-war principles, the Justice Department defined detention authority as aimed at individuals who “substantially supported” terrorist groups or other armed groups, as well as those it directly linked to Al Qaeda and Taliban networks.
The congressional resolution (formally known as the Authorization for Use of Military Force, or AUMF) “authorizes the use of necessary and appropriate military force against members of an opposing armed force, whether that armed force is the force of a state or the irregular forces of an armed group like al-Qaida,” the memorandum said.
The memorandum, filed with U.S. District Court Judge John D. Bates, can be found here. Attorney General Eric H. Holder, Jr., in a separate formal “declaration” (found here), outlined the Administration’s plans for its broad review of detention policies. A Justice Department press release, interpreting the court filings in a way to suggest changes from Bush Administration policy, can be found here. The Center for Constitutional Rights, an advocacy group that represents a number of detainees, said in a news release (found here) that the new definition is “almost the same standard” as the Bush Administration used. The American Civil Liberties Union also issued a news release (found here) expressing its concern.
The memorandum suggested that, if the 13 District judges handling detainee cases in Washington “desire oral argument” on the detention authority issue, they should sit together for “a single argument in a consolidated manner.” It also urged that the judges try “to the extent possible” to “reach a common ruling.”
Two judges, however, have been pursuing their own review of habeas cases, outside the coordinated efforts of their remaining colleagues. One of those judges, in fact, has already decided several cases using an “enemy combatant” designation that followed exactly the form used by the Bush Administration.
  Since July 2004, the Bush Administration had been using the designation “enemy combatant” as the basis for holding individuals at Guantanamo Bay, Cuba. Here is how that Administration defined the concept in a court filing in January, shortly before leaving office: “At a minimum, the President’s power to detain includes the ability to detain as enemy combatant those individuals who were part of, or supporting, forces engaged in hostilities against the United States or its coalition partners and allies. This includes individuals who were part of or directly supporting Taliban, al-Qaida, or associated forces, that are engaged in hostilities against the United States, its coalition partners or allies. This also includes any persons who have committed a belligerent act or supported hostilities in aid of enemy forces.”
Here is the definition of detention authority, without the label “enemy combatant,” that the Obama Administration outlined Friday: “The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any peson who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.”
Here are the differences:
First, the new version requires proof of “substantial” support of Taliban or Al-Qaeda forces, while the former version required proof of “direct” support of such forces.
Second, the new version requires proof of “substantial” support of forces (other than Taliban or Al-Qaeda) engaged in hostilities against the U.S. and its coalition partners, while the former version only required “support.”
And, third, the new version applies to a person who “directly” supported hositilities to aid enemy armed forces, while the former version only required “support” of such hostilities, and did not include the word “armed” as to enemy forces who had been supported.
Besides filing its new version with Judge Bates, the government also filed the same memorandum with two other federal judges handling detainee habeas cases. The three judges have said they needed to have a definition of detention authority before them, before they could proceed to the merits of the habeas challenges. However, another judge, Richard J. Leon, earlier adopted the Bush Administration version and is proceeding on that basis.
None of the judges is bound by the definition laid out in the government’s new version. They may decide, on their own, what detention authority exists, and decide particular detainees’ cases on it.
In a new filing Friday with District Judge Gladys Kessler, the government added a footnote to respond to her query that essentially asked whether the D.C. Circuit Court had already embraced the government’s former definition of “enemy combatant.” The Circuit Court had issued a ruling Feb. 19 in a case involving Chinese Muslim detainees at Guantanamo, and included a reference to a combatant definition. The Justice Department responded to that, telling Judge Kessler that the Circuit Court had merely recited a Pentagon definition used earlier. That, the Department said, “was not a substantive discussion of the legal authority for detention.”
In putting forth a revised claim of power to detain terrorism suspects, the memorandum expressly urged the judges not to adopt a version that detainees’ lawyers have suggested. They had proposed that the government be allowed to detain only those who took a direct role in “hostilities.”
The document argued: “Law-of-war priniciples do not limit the Untied States’ detention authority to this limited category of individuals. A contrary conclusion would improperly reward an enemy that violates the laws of war by operating as a loose network and camouflaging its forces as civilians.”
It also contended that “it is of no moment that someone who was part of an enemy armed group when war commenced may have tried to flee the battle or conceal himself as a civilian in places like Pakistan.”
In addition, the memorandum asserted that the detention power “is not limited to persons captured on the battlefields of Afghanistan.” It mentioned those who “provide substantial support” to a terrorist network “in other parts of the world,” but did not say what that reference meant — and, thus, did not exclude applying the detention power inside the U.S., when “substantial support” for terrorism is found inside the country.
The Justice Department noted in the filing that it was submitting it to meet a March 13 deadline set by the three judges who wanted to know if the new Administration was going to change detention power claims. It said that the inter-agency review of all facets of detention policies “may result in further refinements” of those policies, and that, if so, the judges will be notified.
The memorandum expressly noted that the new definition would only apply to individuals now held at Guantanamo Bay. That leaves out, among other detention sites, the U.S. military jail operated at Bagram airbase in Afghanistan. Earlier, the Obama Administration told Judge Bates that it was not changing the Bush Administration view that the Bagram detainees have no rights to challenge their captivity there.
