Still Waiting for a Just Detainee Policy

“Has the Obama administration changed the legal rules for detaining suspects in the war on terrorism,” asked Harvard law professor Noah Feldman in an op-ed in The New York Times today, “or is it continuing in the footsteps of the Bush administration?”

As I wrote when the administration first announced it would stop using the term “enemy combatant” in a late Friday afternoon filing in federal court, the Obama Justice Department, while discarding the old terminology and giving a nod to the legitimacy of international law and the role of Congress, basically held on to much the same right of indefinite detention that the Bush administration had pronounced. Sure, now the president would have to believe that the detainees had a “substantial” connection to al-Qaeda or the Taliban, but the government’s brief provided no definition of “substantial,” and surely Bush officials would have claimed that all those prisoners — “the worst of the worst” as they were fond of calling them (and former Vice President Dick Cheney still does) — were “substantially” assisting al-Qaeda or the Taliban in one way or another.

As Feldman points out, the key will be how the Obama Justice Department starts applying this “new” non-enemy combatant category of detainee when it comes to deciding what to do with these prisoners.

Absolutely. But Feldman refers only to the 241 prisoners still held at Guantanamo Bay. There’s also another 600 prisoners who were deemed “enemy combatants” by the Bush administration that are being held at the American detention facility at Bagram air base in Afghanistan. Recall that the Obama administration recently insisted, like the Bush administration, that those detainees do not even have the right to habeas corpus — that is, to challenge their detention in a U.S. court. And the new administration is still hiding critical information about who is being held at the base — which is directly relevant to determining their legal rights.

The Obama administration has surely already proved itself more adept at using legal language to justify its detention policies. As Feldman points out, these were policies created by the last administration and the Obama team is now stuck trying to deal with the mess they were bequeathed, without letting dangerous people go free. The new administration is also under serious pressure from a host of Republicans who, apparently eager to undermine Obama’s efforts, are loudly proclaiming that closing the Guantanamo prison is a “dangerous” idea.

Still, Obama promised a return to respect for the rule of law, not just in word but in deed. As long as potentially innocent men remain imprisoned without charge or trial — and in the case of Bagram, without the right to challenge their detention or even speak to a lawyer — then the new administration will not have followed through on its promises.