United States abandons detention based on designation as enemy combatant but maintains right to detain persons giving substantial support to terrorism.

AuthorCrook, John R.

In a March 2009 filing in about forty habeas corpus cases in U.S. District Court for the District of Columbia, the U.S. Department of Justice indicated that the United States would no longer characterize detained Al Qaeda or Taliban members or supporters as enemy combatants. The government contended, however, that it had the right to detain persons who provided substantial support for Al Qaeda and the Taliban without criminal charges, based on the congressional Authorization for the Use of Military Force (1) (AUMF) as informed by the laws of war. The filing did not repeat the previous administration's view that the power to detain also independently flowed from the president's constitutional powers as commander in chief.

The filing responded to federal judges' orders seeking clarification of the government's legal theory for continued detentions. It was criticized by some detainees' lawyers and human rights groups, who believed that it did not significantly alter the previous administration's policies and that it reflected too broad an assertion of the power to detain. (2) An excerpt from a Department of Justice press release regarding the filing follows:

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." .... 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...

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