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

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

"The biggest danger," he said, "is that it is an effort to make Obama look principled on international law before he blocks any criminal investigation of war crimes by his predecessor."

Human Rights Watch took a similar view. Joanne Mariner, HRW’s terrorism and counterterrorism program director said, "The Obama administration’s take on detainees is essentially the Bush standard with a new name. The Obama administration's newly issued position on Guantanamo detainees is a disappointment. Rather than rejecting the Bush administration's ill-conceived notion of a ‘war on terror,’ the Obama administration's position on detainees has merely tinkered with its form."

"We urge the Obama administration to reconsider its views," Mariner said. "The administration should be prosecuting terror suspects in the federal courts, not looking for ways to circumvent the criminal justice system."

And Jonathan Hafetz of the American Civil Liberties Union (ACLU), who is currently defending several former Guantanamno detainees in a lawsuit against a subsidiary of the Boeing Company for its alleged involvement in their "extraordinary rendition," told IPS:

"The new administration is interpreting the Authorization for Use of Military Force (AUMF) largely as the Bush administration did: As giving the president broad powers to detain indefinitely individuals without charges or trial based on suspected terrorist activities."

The Obama legal team "remains locked into the same misguided and illegal approach to fighting terrorism. The dropping of the ‘enemy combatant’ labels appears at this point more symbol than substance," he said.

The AUMF resolution was passed by Congress on September 18, 2001, immediately following the terrorist attacks of September 11, 2001. It authorized President George W. Bush to use the U.S. Armed Forces to pursue those responsible.

But not all constitutional experts agreed with the statements of human rights groups. For example, Prof. Peter Shane of the University of Ohio law school took a somewhat more nuanced view.

He told IPS, "If the Obama administration is abandoning the position that the president has exclusive and virtually unlimited authority to guide foreign and military affairs unilaterally, that may signal a willingness to collaborate with Congress in the development of future initiatives, which, in turn, could well have a moderating impact on American adventurism abroad."

The Rasul case has had a difficult history in U.S. courts. The U.S. Circuit Court, in a ruling in January of last year, decided that Guantanamo detainees have no constitutional rights because they are "aliens without property or presence in the U.S." It dismissed the case.

But in December of this year, the U.S. Supreme Court agreed to review the case. The high court sent the case back to the U.S. Court of Appeals for the D.C. Circuit for further consideration.

The "further consideration" was triggered by a landmark Supreme Court decision nine months ago in a case known as "Boumediene," which established that Guantanamo detainees do have a constitutional right to challenge their detention in federal court. It returned the Rasul case for a second look by the Circuit Court.

While President Obama has ordered the prison at Guantanamo Bay to be closed by next January, government lawyers have taken positions in several current detainee court cases that do not propose fundamental change from that taken by the Bush administration. It has also invoked the so-called "state secrets" privilege to prevent cases from ever being heard in courts, on the grounds that public disclosure would jeopardize national security.

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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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