Legal News

In a stunning reversal of the Bush administration's policy, the U.S. Department of Justice (DOJ) today announced the elimination of the "enemy combatant" definition used to detain terrorists at Guantanamo Bay without criminal charges. Furthermore, pursuant to executive orders from President Obama, the DOJ will be undertaking a sweeping review of the "detention policy for individuals captured in armed conflicts or counterterrorism operations as well as a review of the status of each detainee held at Guantanamo."

In a press release, the DOJ noted Attorney General Eric Holder declared in a court filing that the new standard for holding detainees:

"...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.'"

Attorney General Eric Holder explained the change, "As we work towards developing a new policy to govern detainees, it is essential that we operate in a manner that strengthens our national security, is consistent with our values, and is governed by law...The change we've made today meets each of those standards and will make our nation stronger."

A CNN report on the announcement indicated that it was unclear how the new "substantial support" standard would affect some detainees:

"The Justice Department did not say how many of the approximately 240 detainees now at Guantanamo may fall within the new definition. The new construct clearly allows for the continued detention of admitted 9/11 mastermind Khalid Sheikh Mohammed and a handful of his acknowledged al Qaeda operatives."

CNN further clarified that "the new definition applies only to prisoners at Guantanamo Bay and not at other military prison facilities". This is of particular note as some commentators have noted recently that, despite President Obama's already clearly stated intention to shut down Guantamo, there may be a number of issues with regards to the United States' detention of individuals in other locations.

Considering past news of former Guantanamo detainees joining terrorist organizations, at times in prominent roles, today's release changing the very standard by which detainees are to be held will surely invite a flurry of comment and debate.

• CNN: U.S. reverses policy, drops 'enemy combatant' term
• DOJ Release Withdrawing "Enemy Combatant" Definition for Guantanamo Detainees (Department of Justice)
• Former President Bush?s Military Order on Detention (FindLaw)
• Justice Department's Legal Brief [PDF] (FindLaw)
• Not Just Guantanamo (FindLaw's Writ)
• BBC News: Guantanamo inmate joins Taleban
• Miami Herald: Ex-Guantánamo inmate turned al Qaeda commander surrenders
• Advice to Obama on Closing Guantanamo (FindLaw's Writ)
• Constitutional Protections Provided to Criminal Defendants (provided by Essmyer, Tritico & Rainey, LLP)