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U.S. abandons "enemy combatant" status at GITMO

In a stark departure from the previous administration, U.S. President Barack Obama called for the use of international law as a standard for determining the basis for holding detainees at Guantanamo Bay.

“As we work toward 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,” said U.S. Attorney General Eric Holder.

The U.S. Justice Department filed court papers saying it would abandon the “enemy combatant” status and move toward eliminating plenary presidential authority over the detention status of prisoners held there.

The Military Commissions Act of 2006 adopted the term “unlawful enemy combatant” and “lawful enemy combatant” as such;

“The term ‘unlawful enemy combatant’ means —

(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al-Qaida, or associated forces); or

(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.”

“The term ‘lawful enemy combatant’ means a person who is —

(A) a member of the regular forces of a State party engaged in hostilities against the United States;

(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or

(C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.”

In the wake of the 2008 decision in Boumediene v. Bush, a U.S. Supreme Court Case defending the rights of Guantanamo detainees, District Court Judge Richard Leon narrowed the scope of “enemy combatant” to

“an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed belligerent act or has directly supported hostilities in aid of enemy combat forces.”

The Justice Department said the legal basis for detainees at Guantanamo will now have its foundation in U.S. and international law, including the Geneva Conventions.

The Bush administration had said early in the Guantanamo debate that combatants captured during the so-called war on terror were not subject to the rights under Geneva.

The Obama administration has moved to close the Guantanamo detention facility, saying the majority of the prisoners held there – about 240 – would be put on trial.

 

Author

Daniel Graeber

Daniel Graeber is a writer for United Press International covering Iraq, Afghanistan and the broader Levant. He has published works on international and constitutional law pertaining to US terrorism cases and on child soldiers. His first major work, entitled The United States and Israel: The Implications of Alignment, is featured in the text, Strategic Interests in the Middle East: Opposition or Support for US Foreign Policy. He holds a MA in Diplomacy and International Conflict Management from Norwich University, where his focus was international relations theory, international law, and the role of non-state actors.

Areas of Focus:International law; Middle East; Government and Politics; non-state actors

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