In a dramatic break with longstanding U.S. government policy and established interpretations of the laws of war, the Obama administration announced Friday afternoon (a time when the government announces policy changes it hopes will be ignored or buried by the news media) that it will abandon the use of the term “enemy combatant” as a standard “for the government’s authority to hold detainees at the Guantanamo Bay Detention Facility.” (DOJ release) This latest flipflop on legal policy regarding Guantanamo detainees is inconsistent with Obama’s recent policy declaration on detainees held in other areas and established norms of international law – as noted in a previous post. More importantly, it leaves those detainees in legal limbo and opens up the status of all detainees for legal challenges on spurious grounds – a litigator’s wet dream, but a national security nightmare. Incoherent:
The Obama/Holder elimination of “enemy combatant” designation leaves detainees in legal limbo:
The Justice Department filing doesn't give the war prisoners a specific designation. They aren't described as POWs or enemy combatants or unprivileged belligerents, all categories of war prisoners under international law.
A Justice Department official said Friday that, for now, they are just considered ''detainees..”
According to accepted norms of international law, there can be no grey area in detainee status:
"There is no intermediate status; nobody in enemy hands can be outside the law," as stated in the commentary of the International Committee of the Red Cross (ICRC) on the Geneva Conventions, "If civilians directly engage in hostilities, they are considered 'unlawful' or 'unprivileged' combatants or belligerents.” Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958)
In the United States, the Military Commissions Act of 2006 codified the legal definition of the term “enemy combatant” and invested the U.S. President with broad discretion to determine whether a person may be designated an unlawful enemy combatant. Holder’s Justice Department, in declaring that only the AUMF (Authorization for the Use of Military Force, 18 September 2001) is the basis for detention authority, contravenes the intent of Congress and subsequently enacted legislation.
Elimination of the “enemy combatants” designation for detainees at Guantanamo directly contradicts the continued use – in fact, reinforcement – of the term with regard to detainees held in venues other than Guantanamo (cf recent Obama policy declaration re: Bagram detainees).
We move the most dangerous prisoners – those with the most involvement in terrorist plots, the most presumed intelligence value, the most hard-core members of terrorist organizations - to Guantanamo. Suddenly, they’re no longer “enemy combatants” due to a change in venue? This defies all logic.
This latest policy shift unnecessarily narrows the scope of authority for detention of terrorists AND the scope of activity subjecting individuals to capture and detention. Strictly speaking, the policy limits detention to those directly connected to the 9/11 attacks, or members of “Taliban or al Qaida forces or associated forces.” What about other terrorist activity, either concurrent or subsequent to 9/11? What about terrorists not belonging to the Taliban, al Qaida, or other “associated forces”? Analogies come to mind about lacking authority to combat and capture Japanese soldiers because they didn’t take part in the Pearl Harbor raid (to say nothing of German, Italian, or other Axis forces). Defense attorneys are no doubt salivating at the prospect of suing to free poor “Achmed” because he’s not a card-carrying member of al Qaida (never mind the fact that he blew up dozens of innocents) – however, those of us in the actual profession of Defense (of this country) are left betrayed by the knowledge that the bad guys we captured and sent to Guantanamo might get released on a technicality.
Yep, that’s “consistent with national security” all right.