NationStates Jolt Archive

The Justice Department today told a federal court that it has the power to detain those who "substantially" supported Taliban or al Qaeda forces after Sept. 11 but is dropping the legal use of the phrase "enemy combatant" to describe such detainees.

http://www.abcnews.go.com/TheLaw/story?id=7078682&page=1

Yay! No more BS "Theyre not soldiers, theyre enemy combatants, thus have no rights!"

Where's the ch-

*tackled*

Lol, now they are "persons of particular importance."

Or something.

Well, Obama walks a fine line between wanting to scrap Bush's obscene injustices and simply opening the gates of Gitmo. Nice to see that the shift back toward constitutionality is still a priority.

Where's the ch-

*tackled*

It had to be done.

It had to be done.

Sorry, couldn't resist.

So does that mean these prison complexes in Afghanistan are now going to be completely subject to the Geneva convention? Or are those prisoners just going to be rebranded as Afghan criminals and treated according to Afghan prison wardens' whims?

It's a dodgy situation, and I'm not entirely sure dropping that term from the books will automatically solve it. Either all these people get flown to the US for proper processing, or they end up being subject to Afghan law, which is crap. The only real option is to build new camps with proper comforts and with some sort of continuous international UN and NGO presence for monitoring purposes. If they do that, I'll be happy.

So does that mean these prison complexes in Afghanistan are now going to be completely subject to the Geneva convention? Or are those prisoners just going to be rebranded as Afghan criminals and treated according to Afghan prison wardens' whims?

We'll see.

It's a dodgy situation, and I'm not entirely sure dropping that term from the books will automatically solve it. Either all these people get flown to the US for proper processing, or they end up being subject to Afghan law, which is crap. The only real option is to build new camps with proper comforts and with some sort of continuous international UN and NGO presence for monitoring purposes. If they do that, I'll be happy.

Or we keep them in Afghanistan but treat them as POWs.

http://img218.imageshack.us/img218/4084/changemotivator.th.jpg (http://img218.imageshack.us/my.php?image=changemotivator.jpg)

Well, Obama walks a fine line between wanting to scrap Bush's obscene injustices and simply opening the gates of Gitmo. Nice to see that the shift back toward constitutionality is still a priority.

^^^This

Or we keep them in Afghanistan but treat them as POWs.
Meaning that these new camps probably have to be constructed. Those people are now kept in a dungeon below the airbase in Kabul, IIRC and never see the light of day. I'd argue that you can't keep people in there and comply with all the statutes on POWs.

I saw this story, but didn't see what they are being called. POWs? Ordinary criminals?

This does nothing to actually ensure the imprisoned have rights. Dropping a loaded word is great, but moving the cases from military to civil judiciary systems would be better. Currently they're still very limited in their legal rights.

This does nothing to actually ensure the imprisoned have rights. Dropping a loaded word is great, but moving the cases from military to civil judiciary systems would be better. Currently they're still very limited in their legal rights.

Actually, this is a substantial step in the right direction and is just part of a greater movement. As the DOJ explains (emphasis added):

Department of Justice Withdraws “Enemy Combatant” Definition for Guantanamo Detainees (http://www.usdoj.gov/opa/pr/2009/March/09-ag-232.html)

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. A copy of the brief is attached.

Memo Regarding the Government’s Detention Authority (http://www.usdoj.gov/opa/documents/memo-re-det-auth.pdf)

Declaration of Attorney General Eric Holder (http://www.usdoj.gov/opa/documents/ag-declaration.pdf)

NOTE: The prisoners at Gitmo are getting habeas corpus hearings. Until now, the standard that has been applied is that the government continue to hold any individual that is shown by a perponderance of the evidence (not beyond a reasonable doubt, but merely more likely than not) to meet this definition of "enemy combatant":

An "enemy combatant" is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

*extremely helpful snip*

Thanks for the details. I was hoping someone would come by with more details than my ignorance.

But, I want to wait and see what the administration does. These quotes concern me:
Jonathan Hafetz, a lawyer with the American Civil Liberties Union’s National Security Project, on the government’s announcement:

"While it is positive that the new administration has re-considered and narrowed the definition of an “enemy combatant,” the new definition is way too broad and, in critical respects, reflects a continuation of the prior administration’s wrongheaded and illegal detention policy. In particular, it continues to treat terror suspects as a military, rather than criminal justice matter, and to claim the authority to seize and detain individuals captured beyond the battlefield indefinitely and without charges."

And from the Center for Constitutional Rights:

"While the new government has abandoned the term “Enemy Combatant,” it appears on first reading that whatever they call those they claim the right to detain, they have adopted almost the same standard the Bush administration used to detain people without charge – with one change, the addition of the word “substantially” before the word “supported.” This is really a case of old wine in new bottles."

I'd like to see some action instead of posturing before I make a blanket decision.

Actually, this is a substantial step in the right direction and is just part of a greater movement. As the DOJ explains (emphasis added):

Department of Justice Withdraws “Enemy Combatant” Definition for Guantanamo Detainees (http://www.usdoj.gov/opa/pr/2009/March/09-ag-232.html)

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. A copy of the brief is attached.

Memo Regarding the Government’s Detention Authority (http://www.usdoj.gov/opa/documents/memo-re-det-auth.pdf)

Declaration of Attorney General Eric Holder (http://www.usdoj.gov/opa/documents/ag-declaration.pdf)

NOTE: The prisoners at Gitmo are getting habeas corpus hearings. Until now, the standard that has been applied is that the government continue to hold any individual that is shown by a perponderance of the evidence (not beyond a reasonable doubt, but merely more likely than not) to meet this definition of "enemy combatant":

An "enemy combatant" is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.
You must be the hardest working poster on NSG. Just wanted to show my appreciation for what it is worth.

-snip-
That only explicitly talks about Gitmo. The question to me is what happens in Bagram, ie what does this ruling change about the situation of the people locked up there, and indeed in the various Black Sites.

http://en.wikipedia.org/wiki/Bagram_Theater_Internment_Facility

Yay! No more BS "Theyre not soldiers, theyre enemy combatants, thus have no rights!"

And, by the way, the Geneva conventions didn't recognise any difference between "soldiers" and "enemy combatants".

Shrubby thinking. :p

I'm sending the famous postcard to O'Bama. Tomorrow I'll post here the scan of it so you'll know I'm not lying.

I saw this story, but didn't see what they are being called. POWs? Ordinary criminals?

The Geneva convention is quite clear. They should be treated as POWs (unless Afghanistan wants to charge them with some crime).