March 13, 2009 -- The Justice Department today told a federal court that it has the power to detain those who "substantially" supported Taliban or al Qaeda forces after Sept. 11 but is dropping the legal use of the phrase "enemy combatant" to describe such detainees.
In the court filing, lawyers for the Obama administration wrote that the president based his detention authority on the Authorization for the Use of Military Force passed by Congress in 2001 after the Sept. 11 attacks.
The administration also advised the judge that it is involved in a "forward-looking multi-agency effort" to develop a comprehensive detention policy and that its views may "evolve" as a result.
"The Obama administration is trying to distance itself from the Bush administration's legal positions while still preserving broad detention authority," said Columbia Law School professor Matthew Waxman. "The new definitions and language, as well as the emphasis on congressional authorization, are smart steps. But on the core issue, the position remains that the executive currently has broad authority to detain enemy fighters in an ongoing, global war against al Qaeda."
In a statement issued today, Attorney General Eric Holder said, "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. The change we've made today meets each of those standards and will make our nation stronger."
But critics of the Bush administration's detention policy said that the Obama administration has not done enough to change the policy.
"It's not a redefinition at all," Stephen Abraham, a retired U.S. Army lieutenant colonel, told ABC News. "It's nothing less than a restatement of the old Bush definition with a plea that the judge let the Department of Justice engage in a case-by-case analysis of each detainees' specific case."
Holder Had Dropped a Hint
Holder is overseeing the multi-agency review, which includes the secretary of defense, the secretary of state, the homeland security secretary, the director of national intelligence, chairman of the Joint Chiefs of Staff and the FBI and CIA directors. The review committee held its first Cabinet-level meeting Monday.
After swearing in Deputy Attorney General David Ogden and Associate Attorney General Thomas Perrelli this morning, Holder hinted at the upcoming change, saying, "There is an awful lot of work that we have to do. There are things, quite frankly, that we have to reverse; policy changes that we have to make."