Administration Refines Position on Detention at Guantanamo Bay

The Obama administration today filed a long anticipated memo in federal court outlining its "refined" position on its authority to detain individuals at Guantanamo Bay.  AG Holder also filed a declaration stating the status of the administration's review of detention policies at Guantanamo through the Special Task Force on Detention Policy.  DOJ's press release is here.

The administration's definition of individuals it may detain is unremarkable and similar to the Bush administration's definition of "enemy combatant."  (The administration has already come under fire for not substantially changing the Bush administration definition.  I think this misses a much more important point in the memo, the administration's claimed basis for detention, discussed below.)  The administration wrote this on the definition of detainable individuals:

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks.  The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces. 

This requires that detainable individuals "substantially" supported the Taliban, al-Qaida, or associated forces, or "directly" supported hostilities in their aid--only modest tightening of the Bush administration definition of "enemy combatant."

The more important point in the memo, however, is that the administration bases its authority on the Authorization for Use of Military Force (a Congressional act) and international law of war.  The memo references throughout the AUMF, "principles of the law of war," and international treaties and makes clear that the administration's claims are based upon these . . . and only these.  Thus the Obama administration takes the position that it is bound by these sources of law in its detention policies.

This is an extraordinary change from the Bush administration, which claimed inherent executive authority to detain and try enemy combatants (among other things), without regard to international law, treaties, or U.S. law. 

It's true, as critics contend, that this memo alone may not fundamentally change things at Guantanamo Bay and in detainees' habeas petitions now pending in federal court.  (Other administration action, however, may change things.  Let's see what happens with the Special Task Force on Detention Policy.  And remember that this memo merely reflects the administration's position, not (necessarily) the court's ruling on the definition of detainable individuals.) 

But even if the memo doesn't change things in the habeas cases, the administration's legal basis for detention has changed dramatically from the prior administration.  This is a change well worth applauding.

SDS