Obama abandons term 'enemy combatant'

The president still asserts the military’s authority to hold Gitmo detainees

WASHINGTON – The Obama administration said Friday that it is abandoning one of President George W. Bush’s key phrases in the war on terrorism: enemy combatant.

The Justice Department said in legal filings that it will no longer use the term to justify holding prisoners at Guantanamo Bay.

But that’s won’t change much for the detainees at the U.S. naval base in Cuba — Obama still asserts the military’s authority to hold them. But his Justice Department says that authority comes from Congress and the international laws of war, not from the president’s own wartime power as Bush had argued.

In another court filing Thursday, the Obama administration tried to protect top Bush administration military officials from lawsuits brought by prisoners who say they were tortured while being held at Guantanamo Bay.

Detainee lawsuits
The Obama administration’s position on use of the phrase "enemy combatants" came in response to a deadline by U.S. District Judge John Bates, who is overseeing lawsuits of detainees challenging their detention. Bates asked the administration to give its definition of whom the United States may hold as an "enemy combatant."

The filing back’s Bush’s stance on the authority to hold detainees, even if they were not captured on the battlefield in the course of hostilities. In their lawsuits, detainees have argued that only those who directly participated in hostilities should be held.

"The argument should be rejected," the Justice Department said in its filing. "Law-of-war principles do not limit the United States’ detention authority to this limited category of individuals. A contrary conclusion would improperly reward an enemy that violates the laws of war by operating as a loose network and camouflaging its forces as civilians."

Retired Army Lt. Col. Stephen Abraham, a former Guantanamo official who has since become critical of the legal process, said it’s a change in nothing but semantics.

"There’s absolutely no change in the definition," Abraham said in a telephone interview. "To say this is a kinder more benevolent sense of justice is absolutely false. … I think the only thing they’ve done is try to separate themselves from the energy of the debate" by eliminating Bush’s phrasing.

Attorney General Eric Holder also submitted a declaration to the court outlining President Barack Obama’s efforts to close the Guantanamo Bay detention facility within a year and determine where to place the 240 people held there. He said there could be "further refinements" to the administration’s position as that process goes on.

"Promptly determining the appropriate disposition of those detained at Guantanamo Bay is a high priority for the president," Holder wrote.

‘Substantial’ al-Qaida support
The Justice Department says prisoners can only be detained if their support for al-Qaida, the Taliban or "associated forces" was "substantial." But it does not define the terms.

On the topic of former administration officials, the Justice Department argued in a filing with the U.S. Circuit Court of Appeals in Washington, D.C., that holding military officials liable for their treatment of prisoners could cause them to make future decisions based on fear of litigation rather than appropriate military policy.

The suit before the appeals court was brought by four British citizens — Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal Al-Harith — who were sent back to Great Britain in 2004. The defendants in the case include former Secretary of Defense Donald Rumsfeld and retired Gen. Richard Myers, former chairman of the Joint Chiefs of Staff.

The men say they were beaten, shackled in painful stress positions and threatened by dogs during their time at the U.S. naval base in Cuba. They also say they were harassed while practicing their religion, including forced shaving of their beards, banning or interrupting their prayers, denying them copies of the Koran and prayer mats and throwing a copy of the Koran in a toilet.

They contend in their lawsuit that the treatment violated the Religious Freedom Restoration Act, which provides that the "government shall not substantially burden a person’s exercise of religion."

The appeals court ruled against them early last year, saying because the men were foreigners held outside the United States, they do not fall within the definition of a "person" protected by the act.

But later in the year, the Supreme Court ruled that Guantanamo detainees have some rights under the Constitution. So the Supreme Court instructed the appeals court to reconsider the lawsuit in light of their decision.

Torture liability?
Eric Lewis, attorney for the four, said Friday that military officials should be subject to liability when they order torture.

"The upshot of the Justice Department’s position is that there is no right of detainees not to be tortured and that officials who order torture should be protected," Lewis said.

Last month in another court filing, the Justice Department sided with the Bush White House by arguing that detainees at Bagram Airfield in Afghanistan have no constitutional rights.

Human rights advocates cheered Obama’s order the first week of his presidency to close the U.S. military prison at Guantanamo Bay and his declaration that the United States would never again torture prisoners. But, he has since been criticized for maintaining some Bush policies.

Obama has continued Bush’s policy of imprisoning enemy combatants in Afghanistan without trial, and invoked the state secrets law in a federal court case that involves the CIA’s extraordinary rendition program, in which U.S. operatives seized foreign suspects and handed them over to other countries for questioning. The law blocks the release of evidence the government deems secret and potentially harmful to U.S. security.

Secretary of State Hillary Clinton’s statement during a trip to Asia that the administration remains deeply concerned about human rights in China but cannot let that interfere with cooperation with Beijing also worried human rights activists.