Defense lawyers representing several Guantánamo detainees are challenging the Obama administration’s new definition for enemy combatants, arguing that the president’s retooled formula is still too broad and violates traditional laws of war.
On March 13, Justice Department lawyers filed papers outlining the new standards they would use to decide who the government could and could not detain in the war on terror. The revamped guidelines did away with the term “enemy combatant” while slightly narrowing the definition of who could be held. And whereas the Bush administration argued that the president had inherent constitutional authority to detain suspected militants and terrorists indefinitely, the Obama White House says the power comes exclusively from the Authorization for the Use of Military Force in Afghanistan, which Congress passed in 2001.
In their Friday filing , the detainees’ lawyers — a group that included Peter Ellis of Boston’s Foley Hoag, Shayana Kadidal of the Center for Constitutional Rights, and Paul Leder of Washington’s Richards Kibbe & Orbe — argue that the president is still overstepping his legal bounds. They point out that the AUMF says nothing explicit about detention powers, and that the Supreme Court, in cases such as Hamdi v. Rumsfeld (2004), has chosen to apply a narrow reading of the resolution.
The Justice Department has argued that Congress implicitly granted the president broad detention powers when it passed the AUMF. But the defense lawyers say that authority wasn't supposed to extend beyond the ordinary laws of war. They say the government has violated those laws by holding individuals who were not found near a battlefield or caught attacking U.S. troops. They also note that Congress was careful to spell out the rights of suspected terrorists in other legislation, such as the USA Patriot Act.
“Indeed, there is simply nothing in the AUMF or in Hamdi that can be read as Congressional authority or judicial blessing for a military detention power that goes beyond that recognized by the traditional law of war, much less as a plenary grant of power to create some new broad preventive detention scheme,” the filing states.
The lawyers also criticized the government’s decision to drop the use of “enemy combatant,” claiming it underscores that the administration is making up law as it goes along.
“Respondents simply ignore the combatant/non-combatant distinction that is central to the law of war, presenting instead their own novel definition of the categories of individuals they wish to detain,” the filing says.