Should prisoners classified as enemy combatants be able to challenge their detention in U.S. courts?

Yes

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by Shawn Hamilton

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The Justice Department recently announced it would no longer use the term "enemy combatant" to justify holding prisoners at the Guantnamo Bay detention facility. While on the surface the move might seem like a substantial change in policy, reaction from supporters and critics indicates that little has changed except some wording.

In a 2006 paper addressing the term "enemy combatant," Timothy Lynch of the CATO Institute wrote that the most important legal issue to have arisen since the September 11 terrorist attacks has been former President Bush's claim that he can arrest any person in the world and incarcerate that person indefinitely. "According to legal papers Bush's lawyers filed in court," Lynch wrote, "so long as the president had issued an enemy combatant order to his secretary of defense, instead of the attorney general, the president could ignore ordinary constitutional safeguards and procedures."

Specific ally, Lynch refers to Habeas Corpus, the cornerstone of western democracy, which grants people thrown in prison the chance to contest their imprisonment before an impartial judge. "Framers of the American Constitution routinely referred to this legal procedure as the Great Writ' because it was considered one of the great safeguards of individual liberty," Lynch said.

While Commander-in Chief Bush was rounding up suspects and populating Guantnamo Bay with people denied the basic right of Habeas Corpus, Bush's lawyers contended that the courts should not question the president's "battlefield decisions." According to Lynch, when the court pressed government attorneys about their definition of the term "battlefield," the lawyers astonishingly said they considered the entire world to be the battlefield, including every inch of U.S. territory. "Every inchfrom Disney World in Florida to Yellowstone Park in the Rockies to the sandy beaches of Hawaii and all of the tiny towns in between. They are all on the battlefield.' That is a profoundly disturbing claim because there are no legal rights whatsoever on the battlefield," Lynch said. "Military commanders simply exercise raw power. By twisting and redefining the term battlefield,' government attorneys [were] advising President Bush that because he [was] the commander in chief, he [could] essentially incarcerate whoever he want[ed]."

So is Obama merely scrapping the term "enemy combatants" or is he substantially revising policy? According to responses on both sides of the issue, there may not be much change we can believe in.

The administration said Friday in a legal memo that it had modified the government's definition of who can be held without charges. While the old definition referred to those who gave "support" to Al Qaeda or the Taliban, the new definition specifies that those who "substantially supported" Al Qaeda or the Taliban can be held no matter where they were captured. The word "substantially" is not defined, and while Obama may have relinquished questionable presidential power to determine who can be held without trial, that power still resides in the US governmentonly through different mechanismsthe Congress and Justice Department along with international laws of war.

In a roundup of quotes posted on the Miami-Herald online, Human Rights Watch stated, "The Obama administration's newly issued position on Guantnamo 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."

Executive director of American Civil Liberties Union, Anthony Romero, said, "It is 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. 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.''

The Center for Constitutional Rights issued this statement: "It appears on first reading that whatever they call those they claim the right to detain, they have adopted almost the same standard the Bush administration used to detain people without chargewith one change, the addition of the word `substantially' before the word 'supported.' This is really a case of old wine in new bottles.''

Retired Army Lt. Col. Stephen Abraham, a former Guantnamo official, said in an interview with the Associated Press, "There's absolutely no change in the definition. To say this is a kinder, more benevolent sense of justice is absolutely false. . . . I think the only thing they've done is try to separate themselves from the energy of the debate.''

Clearly, many of those who have been following what they perceived as the Bush administration's abuse of power are not thrilled with the Obama administration's legal remedies.

One commentator who tended to support the Bush administration didn't seem to mind the semantic change however. Representative Lamar Smith, a Texas Republican and ranking member of the House Judiciary Committee said, "I'm pleased the Obama administration decided essentially to affirm the Bush administration's definition of who can be detained."

For Obama devotees, the foregoing criticism may be uncomfortable and unwelcomed, but unlike Rush Limbaugh, I sincerely want Obama to succeed. I am counting on him to stand up to those forces threatening the life, liberty, and pursuit of happiness of everyone. Prison is appropriate for those who are guilty of heinous crimes, but everyone has the right to be presumed innocent until proven guilty. No-one should be locked up and tortured because they might be guilty. The Framers of our system of government understood the nature of tyrannical power and designed the Constitution and Bill of Rights to address it. We could honor our founders best by honoring the Constitution instead of finding clever ways to circumvent it.

That would be change I can believe in.

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