- The Washington Times - Saturday, March 14, 2009

The Justice Department on Friday jettisoned the term “enemy combatant,” ditched some of the George W. Bush administration‘s assertions of presidential power and raised the standard needed to hold detainees at the naval prison at Guantanamo Bay, Cuba.

But some scholars and advocates say the moves are mainly symbolic breaks with the Bush administration and will have little actual impact.

“It’s disappointing and a welcome, but only minor, modification,” said Jonathan Hafetz, a lawyer for the ACLU who represents Ali al-Marri, a Qatari national who has been detained for more than seven years, much of that time while designated as an “enemy combatant.” “It’s troubling that it appears largely to be a continuation of the misguided and illegal detention policies of the last eight years.”

Under the new policy, the Justice Department says someone must have provided “substantial assistance” to terrorists to be detained. But the term “substantial assistance” is not clearly defined.

Stephen Abraham, a retired Army lieutenant colonel who served on combatant status review tribunals at Guantanamo, said the difference between the definition for “enemy combatant” and the definition describing who can now be held at Guantanamo is virtually nonexistent.

“I think they were just so interested in distancing themselves from the phrase ‘enemy combatants’ and thought ‘that will make everyone happy,’ ” said Col. Abraham, a vocal critic of the tribunals on which he once served. “In short, when you look at the definition, it’s useless. You break the definition down, and it applies to anyone.”

The Justice Department’s policy changes were outlined in a filing in federal court related to a case in which Guantanamo prisoners are challenging their detentions. Included in the filing was a declaration from Attorney General Eric H. Holder Jr. stating that an interagency review of detention policies and a review of the status of each detainee at Guantanamo are continuing.

President Obama has ordered Guantanamo closed within a year and has formed a task force, including Mr. Holder, that is charged with coming up with a plan to deal with the 240 detainees there.

“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,” Mr. Holder said. “The change we’ve made today meets each of those standards and will make our nation stronger.”

Under the Bush administration, the president could declare someone an “enemy combatant” and order them held indefinitely. But the Justice Department now says power doesn’t lie with the president, but with the Congress and the international law of war.

That change was applauded by the liberal People for the American Way, which said the Justice Department “reversed one of the most outrageous policies of the Bush administration.

“By dropping the designation of ‘enemy combatant,’ President Obama is taking a significant step towards reconciling our government’s actions with the principles of the Constitution,” the group’s president, Kathryn Kolbert, said in a statement. “In his inaugural address, he claimed to reject the false choice between our ideals and our safety. Today he proved that he means it.”

But Tom Fitton, president of the conservative Justice Watch, worries that “legions of terrorists will be released under this type of analysis.”

“They’re weakening this commander in chief and future commanders in chief’s ability to detain terrorists,” he said. “They really don’t know what they are doing.”

The group Human Rights First was similarly critical, but for almost opposite reasons.

“The concept of indefinite detention without criminal charge continues, and the class of persons to be detained remains ill-defined and overly broad,” said Elisa Massimino, the group’s executive director. “The administration left open the door to reconsider the definition during ongoing interagency reviews, and we certainly hope it will use that opportunity to narrow the authority and make a clean break from the policies of the past.”

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