U.S. Retires 'Enemy Combatant,' Keeps Broad Right to Detain

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By Del Quentin Wilber and Peter Finn
Washington Post Staff Writers
Saturday, March 14, 2009

The Obama administration yesterday jettisoned the Bush-era term "enemy combatant" but maintained a broad right to detain those who provide "substantial" assistance to al-Qaeda and its associates around the globe.

The disclosure came in a court filing by the Justice Department in response to orders by federal judges, who sought clarity on the government's legal justification for holding about 241 detainees at the military prison at Guantanamo Bay, Cuba.

Though dropping the term "enemy combatant" was a symbolic break from the Bush administration, the practical effects of yesterday's action will not be known for months.

Bush administration officials had long argued they had a broad constitutional power to detain almost any terrorism suspect for an indefinite period. For those at Guantanamo, the government had said it needed to prove only that the detainees were supporting the Taliban, al-Qaeda or associated forces to justify their confinements.

The Justice Department said yesterday that it would seek to hold only terrorism suspects who "substantially supported" those groups and not those who "provide unwitting or insignificant support" to al-Qaeda and the Taliban.

"The particular facts and circumstances justifying detention will vary from case to case," Justice Department attorneys wrote.

The filing also revealed that the Obama administration sees the president's detention power as global and not limited to a battlefield in Afghanistan, as some human rights groups have advocated.

"Individuals who provide substantial support to al-Qaida forces in other parts of the world may properly be deemed part of al-Qaida itself," the court papers said. "Such activities may also constitute the type of substantial support that . . . is sufficient to justify detention."

In a statement, Attorney General Eric H. Holder Jr. said, "[I]t is essential that we operate in a manner that strengthens our national security, is consistent with our values and is governed by law."

"The change we've made today meets each of those standards and will make our nation stronger," he added.

Legal scholars and those representing detainees said that dropping the term "enemy combatant" was important but that the rest of the legal arguments may not change much about the nation's detention policy.

Robert M. Chesney, an expert on national security law at Wake Forest University, said the changes would affect detainees "at the margins."


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