Human rights activists and constitutional law
experts were virtually unanimous in their condemnation of the positions taken
on prisoner detention and treatment in federal court last week by President
Barack Obama's Department of Justice, which one group described as "a
case of old wine in new bottles."
While the Justice Department announced it would no longer use the term "enemy
combatants" one of the George W. Bush administration's signature
phrases and distanced itself from Bush-era claims of unlimited presidential
power, government lawyers urged the court to dismiss a lawsuit brought by four
former Guantanamo detainees because "aliens held at Guantanamo do not
have due process rights."
The former detainees, who are British citizens or residents, are suing former
Defense Secretary Donald Rumsfeld and several senior military officials for
authorizing and carrying out torture and depriving them of their religious
rights while the Britons were in captivity. The case is known as Rasul v.
The government's court brief called for a blanket ban on such lawsuits.
Allowing them "for actions taken with respect to aliens during wartime,"
it told the District of Columbia Circuit Court, "would enmesh the courts
in military, national security, and foreign affairs matters that are the exclusive
province of the political branches."
Human rights advocates were quick to respond.
The Center for Constitutional Rights, which has provided lawyers to defend
many Guantanamo prisoners, said the Obama administration has "adopted
almost the same standard the Bush administration used to detain people without
It called the government's position "a case of old wine in new bottles,"
adding, "It is still unlawful to hold people indefinitely without charge.
The men who have been held for more than seven years by our government must
be charged or released."
Anthony Romero, head of the American Civil Liberties Union, said he found
it "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."
"Once again," he said, "the Obama administration has taken
a half-step in the right direction. The Justice Department's filing leaves
the door open to modifying the government's position; 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."
Brian J. Foley, a visiting associate professor at Boston University law school,
told IPS, "The Obama administration should stop this prison program, which
is actually harmful to U.S. intelligence-gathering."
"Imprisoning people on flimsy evidence means we are interrogating, sometimes
harshly and sometimes with torture, people who are not terrorists. These people
will tell interrogators anything to stop the pain. That means they give us
false leads and send our investigators scurrying around like chickens with
their heads cut off, chasing imaginary monsters."
"This waste of time keeps our investigators from developing real leads.
It's a policy based on fear 'What if there is actually a real terrorist among
the hundreds of innocents? We better not let anyone go!' that is counterproductive
and shameful," he said.
Jonathan Turley, an internationally recognized constitutional scholar and
a professor at George Washington University law school, said, "The [Obama]
administration is still arguing that it can hold these individuals without
federal charges and it is still trying to quash lawsuits filed by their counsel."
"The biggest danger," he said, "is that it is an effort to
make Obama look principled on international law before he blocks any criminal
investigation of war crimes by his predecessor."
Human Rights Watch took a similar view. Joanne Mariner, HRW's terrorism and
counterterrorism program director, said, "The Obama administration's take
on detainees is essentially the Bush standard with a new name. The Obama administration's
newly issued position on Guantanamo 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
"We urge the Obama administration to reconsider its views," Mariner
said. "The administration should be prosecuting terror suspects in the
federal courts, not looking for ways to circumvent the criminal justice system."
And Jonathan Hafetz of the American Civil Liberties Union (ACLU), who is currently
defending several former Guantanamno detainees in a lawsuit against a subsidiary
of the Boeing Company for its alleged involvement in their "extraordinary
rendition," told IPS, "The new administration is interpreting the
Authorization for Use of Military Force [AUMF] largely as the Bush administration
did: As giving the president broad powers to detain indefinitely individuals
without charges or trial based on suspected terrorist activities."
The Obama legal team "remains locked into the same misguided and illegal
approach to fighting terrorism. The dropping of the 'enemy combatant'
labels appears at this point more symbol than substance," he said.
The AUMF resolution was passed by Congress on Sept. 18, 2001, immediately
following the terrorist attacks of Sept. 11, 2001. It authorized President
George W. Bush to use the U.S. armed forces to pursue those responsible.
But not all constitutional experts agreed with the statements of human rights
groups. For example, Prof. Peter Shane of the University of Ohio law school
took a somewhat more nuanced view.
He told IPS, "If the Obama administration is abandoning the position
that the president has exclusive and virtually unlimited authority to guide
foreign and military affairs unilaterally, that may signal a willingness to
collaborate with Congress in the development of future initiatives, which,
in turn, could well have a moderating impact on American adventurism abroad."
The Rasul case has had a difficult history in U.S. courts. The U.S. Circuit
Court, in a ruling in January of last year, decided that Guantanamo detainees
have no constitutional rights because they are "aliens without property
or presence in the U.S." It dismissed the case.
But in December of this year, the U.S. Supreme Court agreed to review the
case. The high court sent the case back to the U.S. Court of Appeals for the
D.C. Circuit for further consideration.
The "further consideration" was triggered by a landmark Supreme
Court decision nine months ago in a case known as Boumediene v. Bush,
which established that Guantanamo detainees do have a constitutional right
to challenge their detention in federal court. It returned the Rasul case for
a second look by the Circuit Court.
While President Obama has ordered the prison at Guantanamo Bay to be closed
by next January, government lawyers have taken positions in several current
detainee court cases that do not propose fundamental change from the Bush administration.
They have also invoked the so-called "state secrets" privilege to
prevent cases from ever being heard in courts, on the grounds that public disclosure
would jeopardize national security.
(Inter Press Service)