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

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."

"They've changed the label, but the substance has changed only a little bit," Chesney said.

Many human rights groups expressed dismay yesterday that the administration had not made a more radical change in tactics and policies.

Tom Parker, Amnesty International advocacy director for terrorism, counterterrorism and human rights, said, "It's symbolically significant that he's dropped the term 'enemy combatant,' but the power to detain individuals within the 'indefinite detention without charge' paradigm remains substantially intact."

The legal filing is the latest signal that Obama's team is not radically departing from many of the terrorism-related legal policies of the previous administration. Late Thursday, it urged an appeals court to reject a lawsuit brought by four Britons who alleged they were tortured at Guantanamo. In another case, involving the al-Haramain Islamic Foundation, which alleges it was the target of illegal government electronic surveillance, Justice Department lawyers have asserted defenses similar to those made under President George W. Bush.

The Obama administration's legal changes came under pressure from federal judges, who are presiding over lawsuits brought by about 200 detainees. The detainees won the right to challenge their confinements in a landmark Supreme Court ruling last year.

The Justice Department had recently argued it wanted to take a case-by-case approach to applying definitions.

But the judges said that was not fair to the detainees and their attorneys, especially because full-blown hearings could begin as soon as next month.

"The definition of the central legal term 'enemy combatant' is not a moving target, varying from case to case, and the court intends to rule on that definition before the parties reach a critical point in these proceedings," Judge John D. Bates wrote in a February order seeking the Justice Department's definition. At least two other judges had requested the government to provide them with the same definition by yesterday.

Another judge, Richard J. Leon, last year applied the "enemy combatant" definition used by the military, which required officials to find only that a detainee supported the Taliban, al-Qaeda or associated groups.

He has ordered that six detainees be freed but that four others can remain in custody. In one case, he ruled that preparing meals for the Taliban was enough to justify continued detention. It is not clear how the Obama administration's new standard will affect detainees in similar situations.

The filing also is occurring as judges are expressing increasing frustration at government delays and tactics in the lawsuits. In recent weeks, one judge has ordered a Justice Department attorney off a case for failing to comply with court instructions. Another has called the Justice Department's legal arguments on taking a case-by-case approach "ludicrous."

Yesterday, a third ordered Justice Department lawyers to file court papers explaining why they should not be held in contempt for failing to turn over exculpatory material to a detainee's attorneys in a timely manner.

In the order, the judge wrote that the Justice Department's legal argument "raises the disturbing implication" that its attorneys do not understand their obligations to turn over such material.

Staff writer Carrie Johnson and staff researcher Julie Tate contributed to this report.

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