Paul Greenberg / March 25, 2009

When Enemy Combatants Aren’t

This country no longer has any enemy combatants to worry about. There, don’t you feel better?

Probably not, because you know that, although the new administration has decided to drop the legal designation Enemy Combatants, they’re all too real. Only the name is gone.

It’s not clear what Eric Holder, the new attorney general, is going to call the hundreds of hardcore cases still locked up at Guantanamo – terrorism suspects? Detainees? You there under arrest?

In the Department of Justice’s latest, long-winded legal brief, enemy combatants are referred to as everything from “individuals captured in connection with armed conflicts and counterterrorism operations” to “members of enemy forces” – anything to avoid calling them what they are in well-established national and international law: enemy combatants.

Mr. Holder has got a year to come up with a standard new term – and a new legal basis for holding the worst of the worst now penned in at Gitmo. That’s how long this new president has given the usual “high-level study commission” to figure out what to do with these prisoners.

Having rejected the old term and the old system of military courts that went with it, what new verbal formula will a new administration concoct, and what new system will it adopt, if any, to deal with the more unpleasant characters now at Gitmo? They may be there for a limited time only. Because this administration also has promised to close the place.

Questions multiply:

Will the administration devise a new system of military commissions or just give the old ones a new name?

Or will it transform all the enemy combatants at Guantanamo, hesto presto, into defendants in the criminal justice system in this country, with all rights and privileges appertaining thereto?

In that case, would the government be obliged to release information in open court that might reveal sources and methods of American intelligence? It didn’t in this latest filing, thank goodness.

Or will the administration turn these prisoners over to other countries? That process is known as rendition, but that term may be abandoned, too. Even if it isn’t, some of our European allies who only a couple of months ago sounded ready to relieve us of these hard cases have begun to think better of it.

Denouncing the Americans for holding unlawful combatants was one thing, accepting responsibility for them quite another. Europeans no longer seem as eager to accept these prisoners – if they were ever sincere about it in the first place.

And who can blame them for backing off? They have civilians of their own to protect, skyscrapers and train stations and urban centers to defend. Why open the gates to these “individuals captured in connection with armed conflicts and counterterrorism operations” and risk their getting loose? If only our own government were as cautious.

As for the prisoners who’ve been turned over to Saudi Arabia and Yemen, they’ve shown an unfortunate propensity to disappear, then reappear in the ranks of al-Qaida. Dealing with enemy combatants in words, it turns out, is so much easier than dealing with them in reality.

Welcome to the Oval Office and the real world, Mr. President.

According to the Pentagon, prisoners already released from Guantanamo have begun to engage in terrorism at ever higher rates. The recidivism rate stood at 12 percent and rising at last report. Which figures, because the most dangerous types at Gitmo are being released last. The approximately 250 inmates still there include the most dangerous of all.

What to do? These remaining prisoners have been cast into legal limbo. For if there is no longer such a thing as enemy combatants, how can they be held as such? Words may matter in law (and elsewhere).

Once upon a time, the status of such prisoners would have been clear: Enemies who wear no uniforms, who have no recognized government that can be held accountable for their crimes, who make war on civilians and in general violate all the laws of war, are not to be confused with prisoners of war with well-defined rights and privileges. See the Geneva Conventions.

But if there’s no longer such a thing as an enemy combatant, what law if any applies to these last remaining prisoners at Guantanamo? That’s for this still new administration to propose, and the courts to decide.

It’s a problem. Doubtless the administration is fashioning new words to get around it. Or it better be. For the sake of this country’s innocent civilians. We lost enough innocents September 11, 2001; we don’t need to endanger any more by playing these word games.

Never fear. “There is absolutely no difference between the new and old definitions” of enemy combatants/terrorism suspects/detainees, says Stephen Abraham, a retired Army Reserve colonel who served on the military commissions at Guantanamo. Those commissions had started trying prisoners – but then were abruptly shut down as soon as this country had a new chief executive, who started issuing new executive orders his first day in office.

The change is only in words, the colonel explains.

Only? Words can be everything in law. And if there is no difference between the old and new terms for unlawful enemy combatants, why were the old tribunals abandoned? Will they continue under a new name? Who knows? Certainly not the administration, which continues to mark time till it can contrive a new term to describe the prisoners’ status, a new legal system under which to hold them, and a new place to install it–for Guantanamo’s days are numbered. Or so says the White House.

Once again it’s not clear that this administration knows what it’s doing, or even intends doing. Only this much is certain: It wants to abandon the way things have been done. After that, all is murk. Dangerous murk.


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