U.S. Unveils New Reason To Hold Gitmo Detainees

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The Justice Department released Friday a new rationale for holding the detainees at the Guantanamo prison camp. The statement says the detainees are being held under the law called the Authorization for the Use of Military Force, passed by Congress after the Sept. 11, 2001 attacks.


From NPR News this is ALL THINGS CONSIDERED. I'm Michele Norris.


And I'm Robert Siegel.

In a major Guantanamo case, the Obama administration has dropped one of the key phrases of the Bush administration's war on terror. That phrase is enemy combatant.

The change came this afternoon in a court filing, and NPR's Ari Shapiro is here to explain the significance of it.

First, give us some context. Where did this court brief come from?

ARI SHAPIRO: Well, the Supreme Court said the Guantanamo detainees could access civilian courts to challenge their detention. So detainees have been doing that. And when the Obama administration came in, the judge handling these cases effectively said, well, President Obama, are you going to make the same arguments that President Bush made for holding these guys? And the judge set a deadline of today.

And today, the Obama administration filed this brief that basically said we're dropping the phrase enemy combatant for the folks at Guantanamo, but we still think that we can hold them, just for a different reason.

SIEGEL: So what's the difference between the Bush administration's argument and the Obama administration's argument?

SHAPIRO: Well, President Bush always said that he had authority, as the Chief Executive, to designate people enemy combatants. He said, "This is a global war. The battlefield includes the United States. The warriors could include Americans and anyone who I say is a terrorist, can be designated an enemy combatant."

Now, the Obama administration inherited about 200 of these guys at Guantanamo. And the Obama administration instead is turning to U.S. and international law. So they're saying Congress passed a law called the Authorization for the Use of Military Force right after 9/11. That law, along with the Geneva Conventions, gives us the authority to hold people who were responsible for, or supported, or sheltered the people who carried out the 9/11 attacks.

They say this can include anybody who provided substantial support to al-Qaida and the Taliban. And that phrase substantial support, they say is going to have to be defined on a case-by-case basis. It could be someone who made an oath of loyalty, someone who trained at a camp, or someone who actually took up arms against America.

SIEGEL: And the significance of this Obama administration argument, this goes beyond semantics.

SHAPIRO: Well, the detainees' lawyers would say no. The Center for Constitutional Rights represents all of these Guantanamo detainees, and they describe this as an old wine in new bottles. But, you know, a lot of people criticized President Bush for doing things that he could have gone to Congress for, based on his own authority instead.

And this is one example of the Obama administration taking something that the Bush administration had done on its unilateral authority and saying, listen, we're still going to keep these guys behind the bars. We're not going to send them home immediately because of this. But we're going to Congress and using that authority instead of the executive privilege.

SIEGEL: And this is all about people at Guantanamo. What about other people who are being detained by the U.S. in Afghanistan or Iraq or in other prisons?

SHAPIRO: Well, there is a government-wide panel that's trying to make decisions about what's going to happen to the people at, for example, Bagram Air Base in Afghanistan. This is a pretty limited brief. The judge asked them to say why they were holding the people at Guantanamo. And so, in this brief, they've laid out their reasoning for holding people at Guantanamo.

It's hard to imagine that today having said the president does not have this authority at Guantanamo, that tomorrow they would turn around and say, well, the president does have this authority at Bagram Air Base in Afghanistan, for example.

This brief does say, detainees' lawyers argue that every terrorist should be treated like a civilian criminal suspect, and the Obama administration argues against that. They say the United States is at war with al-Qaida. We are going to pick up warriors who may have to be held until the war is over.

And that's something that the detainees for the Guantanamo, the lawyers for the Guantanamo detainees, and civil liberties, and human rights groups are going to have some trouble with. They say charge people...

SIEGEL: This war can be going on for another 20 years. If you're applying the reasons, the ration of being a POW, you could be held forever.

SHAPIRO: And these are questions that we're going to have to wait and get the answers to in the next six months to a year, because the Obama administration has said they are going to close Guantanamo within a year. And they just have to figure out what they're going to do with the guys who are there.

SIEGEL: Thank you, Ari.

SHAPIRO: You're welcome.

SIEGEL: That's NPR's Ari Shapiro.

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