The Justice Department on Friday said it would raise the legal standard used to determine who can be held at the U.S. military prison at Guantanamo Bay, Cuba, basing U.S. authority for detaining terrorism suspects on authority derived from Congress and international law — not just presidential power.
In a memorandum to the U.S. District Court for the District of Columbia, government attorneys abandoned the nebulous phrase "enemy combatant" coined by the Bush administration, but insisting the U.S. has the right to detain suspects who "substantially supported" the Taliban, al-Qaida or associated forces.
"The president has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported hostilities in aid of such enemy armed forces," the government asserted in court documents.
Although the brief maintains that the president still has the authority to hold prisoners at Guantanamo Bay, it also incorporated international law and congressional authorization into its legal basis for doing so. The Bush administration had argued that detention authority was derived from the president's authority as commander-in-chief of the military.
Even as President Obama is moving to close the military prison in Cuba, more than 200 detainees are challenging their detentions by the Defense Department in the courts. The Justice Department brief was filed in response to the March 13 deadline set by the court for the U.S. to explain its detention authority.
Attorney General Eric Holder Jr. said in a declaration to the court that the Obama administration is in the process of reviewing the detention policy for individuals detained in armed conflict and counterterrorism operations.
"As we work towards developing a new policy to govern detainees, it is essential that we operate in a manner that strengthens our national security, is consistent with our values, and is governed by law," he said in a statement. "The change we've made today meets each of those standards and will make our nation stronger."
Holder also said the administration reviewing the status of the individual detainees to determine if continued detention is lawful to decide on their disposition.
"The review shall determine whether the continued detention of any such individual is lawful and in the national security and foreign policy interests of the United States and the interests of justice," Holder told the court.
Holder said a task force of Justice Department, Department of Homeland Security, the State and Defense Departments, the office of the director of National Intelligence and the Joint chiefs of Staff is reviewing disposition of individual cases and will make recommendations to senior-level officials.