Obama Loses Phrase "Enemy Combatants," But Detention System Remains the Same

By Willam Fisher, IPS News. Posted March 18, 2009.

NEW YORK, Mar 16 -- Human rights activists and constitutional law experts were virtually unanimous in their condemnation of the positions taken on prisoner detention and treatment in federal court last week by President Barack Obama’s Department of Justice, which one group described as "a case of old wine in new bottles."

While the Justice Department announced it would no longer use the term "enemy combatants" -- one of the George W. Bush administration’s signature phrases -- and distanced itself from Bush-era claims of unlimited presidential power, government lawyers urged the court to dismiss a lawsuit brought by four former Guantanamo detainees because "aliens held at Guantanamo do not have due process rights."

The former detainees, who are British citizens or residents, are suing former Defense Secretary Donald Rumsfeld and several senior military officials for authorizing and carrying out torture and depriving them of their religious rights while the Britons were in captivity. The case is known as Rasul v. Rumsfeld.

The government’s court brief called for a blanket ban on such lawsuits. Allowing them "for actions taken with respect to aliens during wartime," it told the District of Columbia Circuit Court, "would enmesh the courts in military, national security, and foreign affairs matters that are the exclusive province of the political branches."

Human rights advocates were quick to respond.

The Center for Constitutional Rights, which has provided lawyers to defend many Guantanamo prisoners, said the Obama administration has "adopted almost the same standard the Bush administration used to detain people without charge."

It called the government’s position "a case of old wine in new bottles," adding, "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."

Anthony Romero, head of the American Civil Liberties Union, said he found it "deeply troubling that the Justice Department continues to use an overly broad interpretation of the laws of war that would permit military detention of individuals who were picked up far from an actual battlefield or who didn't engage in hostilities against the United States."

"Once again," he said, "the Obama administration has taken a half-step in the right direction. The Justice Department's filing leaves the door open to modifying the government's position; it is critical that the administration promptly narrow the category for individuals who can be held in military detention so that the U.S. truly comports with the laws of war and rejects the unlawful detention power of the past eight years."

Brian J. Foley, a visiting associate professor at Boston University law school, told IPS, "The Obama administration should stop this prison program, which is actually harmful to U.S. intelligence-gathering."

"Imprisoning people on flimsy evidence means we are interrogating, sometimes harshly and sometimes with torture, people who are not terrorists. These people will tell interrogators anything to stop the pain. That means they give us false leads and send our investigators scurrying around like chickens with their heads cut off, chasing imaginary monsters."

"This waste of time keeps our investigators from developing real leads. It's a policy based on fear -- 'What if there is actually a real terrorist among the hundreds of innocents? We better not let anyone go!' -- that is counterproductive and shameful," he said.

Jonathan Turley, an internationally recognized constitutional scholar and a professor at George Washington University law school, said, "The (Obama) administration is still arguing that it can hold these individuals without federal charges and it is still trying to quash lawsuits filed by their counsel."

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William Fisher has managed economic development programs in the Middle East, Africa, Latin America and Asia for the U.S. State Department and the U.S. Agency for International Development.

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