In a new filing, President Barack Obama has dropped “enemy combatant” status as an express standard for holding detainees at Guantanamo Bay. In the press release below, Attorney General Eric Holder has also informed a federal court in Washington, D.C. that it will no longer rely on the President’s independent authority as Commander-in-Chief — the basis for many of former President Bush’s most extreme claims. I discussed the change on this segment of the Rachel Maddow Show.
It is an important day for this country as this Administration regains the credibility lost by the prior Administration’s violation of international and domestic laws. However, the Administration is still arguing that it can hold these individuals without federal charges and it is still trying to quash lawsuits filed by their counsel. This could be purely rhetorical in the end. The biggest danger is that it is an effort to make Obama look principled on international law before he blocks any criminal investigation of war crimes by his predecessor.
The entirety of the Justice Department press release is below:
In a filing today with the federal District Court for the District of Columbia, the Department of Justice submitted a new standard for the government’s authority to hold detainees at the Guantanamo Bay Detention Facility. The definition does not rely on the President’s authority as Commander-in-Chief independent of Congress’s specific authorization. It draws on the international laws of war to inform the statutory authority conferred by Congress. It provides that individuals who supported al Qaeda or the Taliban are detainable only if the support was substantial. And it does not employ the phrase “enemy combatant.”
The Department also submitted a declaration by Attorney General Eric Holder stating that, under executive orders issued by President Obama, the government is undertaking an interagency review of detention policy for individuals captured in armed conflicts or counterterrorism operations as well as a review of the status of each detainee held at Guantanamo. The outcome of those reviews may lead to further refinements of the government’s position as it develops a comprehensive policy.
“As we work towards developing a new policy to govern detainees, it is essential that we operate in a manner that strengthens our national security, is consistent with our values, and is governed by law,” said Attorney General Holder. “The change we’ve made today meets each of those standards and will make our nation stronger.”
In its filing today, the government bases its authority to hold detainees at Guantanamo on the Authorization for the Use of Military Force, which Congress passed in September 2001, and which authorized the use of force against nations, organizations, or persons the president determines planned, authorized, committed, or aided the September 11 attacks, or harbored such organizations or persons. The government’s new standard relies on the international laws of war to inform the scope of the president’s authority under this statute, and makes clear that the government does not claim authority to hold persons based on insignificant or insubstantial support of al Qaeda or the Taliban.
The brief was filed in habeas litigation brought by numerous detainees at Guantanamo who are challenging their detention under the Supreme Court’s decision last summer in Boumediene v. Bush.