In Selling Its Version of the "War on Terror," Obama Is Adopting Bush's Playbook

By Andy Worthington, AlterNet. Posted March 17, 2009.

This statement raises a second flag of alarm, as this horrendously open-ended piece of legislation may have been appropriate at the time, but it was used by the Bush administration as the foundation stone on which all its subsequent forays into illegal and unconstitutional actions were based (including, it should be noted, holding these “detained persons” without charge or trial at Guantánamo for seven years), and it is disconcerting to realize that a conversation we should be having -- which involves responding to the question, ”Is it justifiable, seven years and seven months after the 9/11 attacks, to claim that we are still involved in an open-ended and ill-defined ‘war’?” -- has, instead, been swept aside.

Further disturbing signs that little, if anything has changed can be found in the government’s explanation of who, it asserted, can be held as the “Nobodies Formerly Known As Enemy Combatants” in the “Current, Novel Type of Armed Conflict.” In spite of claiming that these men must have “substantially supported” the Taliban, al-Qaeda, or other associated groups, the Justice Department specifically stated that it has the authority to detain not only “those who were part of al-Qaeda and Taliban forces,” but also other “members of enemy forces,” even if “they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations,” and adds, “Evidence relevant to a determination that an individual joined with or became part of al-Qaeda or Taliban forces might range from formal membership, such as through an oath of loyalty, to more functional evidence, such as training with al-Qaeda (as reflected in some cases by staying at al-Qaeda or Taliban safehouses that are regularly used to house militant recruits) or taking positions with enemy forces.”

This, of course, renders the word “substantial” worthless, as it allows the government to detain someone who never even “attempted to commit any act of depredation or entered the theatre or zone of active military operations” and may only have stayed in a house associated with those who did engage in militancy, which, to my mind, is not “substantial” support at all. Furthermore, the government asserts that “it is of no moment that someone who was part of an enemy armed group when war commenced may have tried to flee the battle or conceal himself as a civilian in places like Pakistan,” which effectively condemns anyone who may have traveled to Afghanistan before the 9/11 attacks to take the Taliban’s side against the Northern Alliance in Afghanistan’s long-running inter-Muslim civil war (a conflict which had nothing to do with the United States or its allies) into a terrorist if they happened to be present in Afghanistan when the 9/11 attacks occurred.

In this, the government’s thinking was clearly in line with Judge Richard Leon, the District Court judge whose rulings on the habeas corpus cases of ten Guantánamo prisoners in the last few months resulted in decisions that six of the men (five Algerian-born Bosnians, and Mohammed El-Gharani, a former juvenile) were to be released, but that four could continue to be held. In the case of one of the four, the Yemeni Muaz al-Alawi, Judge Leon ruled that the government had established that he “was part of or supporting Taliban or al-Qaeda forces,” because he “stayed at guest houses associated with the Taliban and al-Qaeda … received military training at two separate camps closely associated with al-Qaeda and the Taliban and supported Taliban fighting forces on two different fronts in the Taliban’s war against the Northern Alliance.”

From the point of view of an impartial observer, of course, the problem with Judge Leon’s ruling was that none of these allegations related to “hostilities against the US or its coalition partners,” but he also endorsed the government’s additional claim that, “rather than leave his Taliban unit in the aftermath of September 11, 2001,” al-Alawi “stayed with it until after the United States initiated Operation Enduring Freedom on October 7, 2001; fleeing to Khowst and then to Pakistan only after his unit was subjected to two-to-three US bombing runs.”

See more stories tagged with: habeas corpus, afghanistan, barack obama, department of justice, enemy combatants, taliban, al-qaeda, salim hamdan, guantánamo, authorization for use of , richard leon, ghaleb nasser al-bihani

Andy Worthington is a writer and historian, and author of The Guantánamo Files.

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