Vol. 73/No. 12      March 30, 2009

In a federal court filing March 13 in response to challenges by some 200 men to their indefinite detention at the U.S. prison camp in Guantánamo Bay, Cuba, Justice Department attorneys proposed a sweeping definition of who may be lawfully detained. It includes anyone who "substantially supported Taliban or al-Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners."

The George Bush administration justified detention of "enemy combatants," defining them as those who "directly supported" al-Qaeda or the Taliban. The majority of detainees at Guantánamo were never charged with any specific crime, however.

Unlike Bush, the Obama administration is not claiming a presidential authority to indefinitely incarcerate individuals accused of terrorism, but rather says its authority to do so is based on congressional authorization of military force in response to September 11, 2001.

A statement by the Center for Constitutional Rights said, "They have adopted almost the same standard the Bush administration used to detain people without charge—with one change, the addition of the word 'substantially' before the word 'supported.' This is really a case of old wine in new bottles."

Following a one-day visit to Guantánamo, Attorney General Eric Holder told a February 25 news conference, "I did not witness any mistreatment of prisoners." A U.S. military review of the prison begun in January concluded that the conditions there meet Geneva Convention standards.

The Obama administration has suspended the legal challenges by Guantánamo detainees to indefinite imprisonment while a task force reviews the files on all 242 prisoners in the camp. That is expected to take almost a year. Closing down the prison within the year, as Obama has ordered, "will not be an easy process," Holder said when he returned from Guantánamo. "It does not in any way decrease our determination to close the facility."

On February 27 Ali Saleh Kahlah al-Marri, held in a South Carolina navy brig since 2003 as an "enemy combatant," was formally charged with conspiracy and providing "material support" to al-Qaeda. He was transferred to civilian custody and will be tried in a civilian court in Illinois. Al-Marri is a dual Saudi and Qatari citizen.

Obama simultaneously asked the U.S. Supreme Court to dismiss Marri's legal case, which challenges the authority of the president to indefinitely imprison people charged with "terrorism" who are arrested on U.S. soil. The Supreme Court did so March 6, meaning there will be no court review of presidential power to order an indefinite detention.

In a March 8 interview with the New York Times, Obama did not rule out continuing to authorize the seizure of "terrorism" suspects abroad regardless of the agreement of the country involved. He said anyone so detained would have "an opportunity through habeas corpus to answer the charges."

The Times reported that "aides later said Mr. Obama did not mean to suggest that everybody held by American forces would be granted habeas corpus or the right to challenge their detention. In a court filing last month, the Obama administration agreed with the Bush administration that 600 prisoners in a cavernous prison on the American air base at Bagram in Afghanistan have no right to seek their release in court."  
 
 
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