16 March 2009
New Guantánamo Detainee Policy Rooted in International Law
Elimination of “enemy combatant” status another step toward closure
Washington — The Obama administration has issued new standards for holding terrorism suspects at the Guantánamo Bay detention center that are rooted in international law and mark the White House’s latest step toward final closure of the facility by early 2010.
“As we work toward 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,” Attorney General Eric Holder said in a March 13 statement. “The change we’ve made today meets each of those standards and will make our nation stronger.”
The policy was outlined in a brief issued earlier in the day by U.S. Department of Justice attorneys to the U.S. District Court for the District of Columbia, where lawyers representing 40 Guantánamo detainees are exercising their right to challenge their imprisonment. They won this right under a landmark 2008 Supreme Court decision, Boumediene v. Bush. (See “Guantánamo Detainees Win Right to Challenge Their Detention.”)
Under the new administration policy, Guantánamo detainees no longer would be viewed as “enemy combatants” to be held solely under the president’s constitutional authority as commander in chief of the U.S. armed forces. Instead, the attorneys explained, the United States now will base its authority to hold terror suspects on “the laws of war,” including the Geneva Conventions and other international legal obligations, as they were used to shape the “Authorization for the Use of Military Force” issued by Congress following the September 11, 2001, terrorist attacks.
“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 brief read. “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 person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.”
The new policy addresses critics of the Guantánamo system by firmly establishing the president’s authority to detain terror suspects in accordance with international law as defined in a variety of sources, from the United Nations Charter to the principles of collective self-defense used by NATO and the Organization for American States.
At the same time, the attorneys said, the new policy places an additional burden of proof on the U.S. government to establish specific reasons why continued detainment of individual Guantánamo detainees remains warranted.
“Given the nature of the irregular forces, and the practice of their participants or members to try to conceal their affiliations, judgments about the detainability of a particular individual will necessarily turn on the totality of the circumstances,” government attorneys wrote.
The new detainee policy likely will undergo additional legal refinements, Holder said, but now will serve as the new administration’s legal position as it faces more than 200 additional detainee appeals in U.S. courts, as well as a parallel legal review of all Guantánamo cases ordered by President Obama January 22. (See “Obama Orders Guantánamo Shut Down.”)
Under Obama’s executive orders, an interagency committee made up of the attorney general, the secretaries of the departments of State, Defense, and Homeland Security, and top military and intelligence officials will continue to review the complex legal issues surrounding detaining suspected terrorists.
The United States wants to try 80 of the prisoners on terrorism charges. It has already cleared 50 others for release, but cannot return them to their home countries out of concern for their safety, according to Defense Department officials.
The Obama administration on March 12 named Assistant Secretary of State for European and Eurasian Affairs Daniel Fried as its new special envoy to coordinate the transfer of the Guantánamo detainees.
The 27-nation European Union has expressed support for the closure effort, and plans to send a high-level delegation to Washington to discuss the issue March 16-17, according to media reports.
The full text of the statement on Fried’s appointment is available on America.gov.
