The Obama administration said yesterday that it is abandoning one of President George W. Bush's key phrases in his war on terror: enemy combatant.
The Justice Department said in legal filings that it will no longer use the term to justify holding prisoners at Guantanamo Bay.
That will not change much for the detainees at the jail in the US naval base in Cuba; Obama still asserts the military's authority to hold them. Human rights attorneys said they were disappointed that Obama did not take a new position on that as well.
"This is really a case of old wine in new bottles," the Center for Constitutional Rights, which has been fighting the detainees' detention, said in a statement. "It is still unlawful to hold people indefinitely without charge. The men who have been held for more than seven years by our government must be charged or released."
In another court filing on Thursday criticized by human rights advocates, the Obama administration tried to protect top Bush administration military officials from lawsuits brought by prisoners who say they were tortured while being held at Guantanamo Bay.
The Obama administration's position on use of the phrase "enemy combatants" came in response to a deadline by US District Judge John Bates, who is overseeing lawsuits of detainees challenging their detention. Bates had asked the administration to give its definition of whom the United States may hold as an "enemy combatant."
The filing back's Bush's position on the authority to hold detainees, even if they were not captured on the battlefield during hostilities. In their lawsuits, detainees have argued that only those who directly participated in hostilities should be held.
"The argument should be rejected," the Justice Department said in its filing. "Law-of-war principles do not limit the United States' detention authority to this limited category of individuals. A contrary conclusion would improperly reward an enemy that violates the laws of war by operating as a loose network and camouflaging its forces as civilians."
Attorney General Eric Holder also submitted a declaration to the court outlining President Barack Obama's efforts to close the Guantanamo Bay detention facility within a year and determine where to place the 240 people still held there. He said there could be "further refinements" to the administration's position as that process goes on.
"Promptly determining the appropriate disposition of those detained at Guantanamo Bay is a high priority for the president," Holder wrote.
Elisa Massimino, chief executive and executive director of Human Rights First, urged the administration to use that opening. "We certainly hope it will use that opportunity to narrow the authority and make a clean break from the policies of the past," she said.
There are some changes in legal principles in the Obama position. The Justice Department said authority to hold detainees comes from Congress and the international laws of war, not from the president's own wartime power as Bush had argued.
The Justice Department says prisoners can only be detained if their support for al-Qaida, the Taliban or "associated forces" was "substantial." But it does not define the terms and says "circumstances justifying detention will vary from case to case."
Retired Army Lt. Col. Stephen Abraham, a former Guantanamo official who has since become critical of the legal process, said it is change in nothing but semantics.
"There's absolutely no change in the definition," Abraham said in a telephone interview. "To say this is a kinder, more benevolent sense of justice is absolutely false. ... I think the only thing they've done is try to separate themselves from the energy of the debate" by eliminating Bush's phrasing.
On the topic of former administration officials, the Justice Department argued in a filing with the U.S. Circuit Court of Appeals for the District of Columbia that holding military officials liable for their treatment of prisoners could cause them to make future decisions based on fear of litigation rather than appropriate military policy.
The suit before the appeals court was brought by four British citizens — Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal Al-Harith — who were sent back to Britain in 2004. The defendants in the case include former Secretary of Defense Donald H. Rumsfeld and retired Gen. Richard Myers, former chairman of the Joint Chiefs of Staff.
The men say they were beaten, shackled in painful stress positions and threatened by dogs during their time at the U.S. naval base in Cuba. They also say they were harassed while practicing their religion, including forced shaving of their beards, banning or interrupting their prayers, denying them prayer mats and copies of the Quran and throwing a copy of the Quran in a toilet.
They contend in their lawsuit that the treatment violated the Religious Freedom Restoration Act, which provides that the "government shall not substantially burden a person's exercise of religion."
The appeals court ruled against them early last year, saying because the men were foreigners held outside the United States, they do not fall within the definition of a "person" protected by the act.
But later in the year, the Supreme Court ruled that Guantanamo detainees have some rights under the Constitution. So the Supreme Court instructed the appeals court to reconsider the lawsuit in light of their decision.
Eric Lewis, attorney for the four, said Friday that military officials should be subject to liability when they order torture.
"The upshot of the Justice Department's position is that there is no right of detainees not to be tortured and that officials who order torture should be protected," Lewis said.
Last month in another court filing, the Justice Department sided with the Bush White House by arguing that detainees at Bagram Air Field in Afghanistan have no constitutional rights.