Last week the Obama administration declared it will no longer hold "enemy combatants" at Guantanamo Bay. It will continue to keep people suspected of ties to Al Qaeda or the Taliban in military custody without trial, but it won't call them "enemy combatants," and eventually it will move them to a different prison.
These shifts in nomenclature and location are ripe for mockery, but there may be some substance to them. The administration already has indicated that it will try or release most of the prisoners at Guantanamo, although it is reserving the right to continue indefinitely detaining men it considers too dangerous to release but too difficult to prosecute (because the evidence against them is tainted by coercive interrogations, for example). In papers filed on Friday, the Justice Department says the authority to do that will be based on U.S. statutes and international law, as opposed to a broad reading of executive power (the Bush approach). But in the administration's view, that authority still includes indefinite military detention of people who provide "substantial" support to terrorist groups, no matter what their citizenship or where they are arrested. Here is the ACLU's take:
It is deeply troubling that the Justice Department continues to use an overly broad interpretation of the laws of war that would permit military detention of individuals who were picked up far from an actual battlefield or who didn't engage in hostilities against the United States. Once again, the Obama administration has taken a half-step in the right direction. The Justice Department's filing leaves the door open to modifying the government's position; it is critical that the administration promptly narrow the category for individuals who can be held in military detention so that the U.S. truly comports with the laws of war and rejects the unlawful detention power of the past eight years.
If President Obama is serious about respecting the legislative branch's role in formulating anti-terrorism policy, Congress also can do some modifying and narrowing by taking up issues such as preventive detention and special courts for terrorism suspects. Are such measures justified? If so, under what circumstances? It's better to address these questions directly in public hearings aimed at producing legislation that can be reviewed by the courts, rather than letting the executive branch wing it.
Last month I noted that the Obama administration was keeping its detention options open.