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In a sharp about-turn from the Bush Administration, the Justice Department announced on Friday that it would drop the designation “Enemy Combatant” – a category widely used to justify imprisoning terrorism-related suspects over the last 8 years. Former president Bush used his authority as commander-in-chief to unilaterally hold prisoners without charge, indefinitely. The controversial term “enemy combatant” was used to side-step international laws like the Geneva Convention, and sparked much debate about prisoners’ rights. Now, under President Barack Obama, the Justice Department says it will no longer rely on presidential authority to hold detainees, and is instead developing new standards for imprisonment at facilities like Guantanamo and other US-run prisons that include “substantial” evidence of ties to Al-Qaeda or the Taliban. President Obama has pledged to shut down the US prison in Guantanamo, Cuba – the 200 or so prisoners still remaining there are being held as “enemy combatants” and it is as yet unknown what their fate will be.

GUEST: Hinna Shamsi, an attorney with the ACLU’s National Security Project, Lisa Hajjar, chair of the Law and Society Program at the University of California-Santa Barbara

Rough Transcript:

Sonali Kolhatkar: Let’s remind listeners how the Bush administration side-stepped international law and some would say even the Constitution using the term “enemy combatant”. What was their justification for this term?

Hinna Shamsi: The Bush administration’s justification was that this was a new kind of war that required a new kind of authority which, as we’ve come to find out, was not INAUDIBLE either in the Constitution or in International law. And, you are very right, there are some important aspects of the Obama administration’s filing with the DC courts on Friday. One, the symbolic action of no longer using the term “enemy combatant”, which actually doesn’t exist under the laws of war. And two, no longer arguing that the President has detention power soley by virtue of his Commander in Chief authority. However, there continue to be parts of the definition offered by the Obama administration that are deeply problematic. Including the fact that the Obama administration continues to claim the authority to militarily detain people who were picked up far from any kind of battle field or who didn’t engage in direct hostilities against the United States. And that leaves the door open to an overly broad detention power that does not comport with the laws of war.

SK: So what you are saying Hinna is that even though this term has been dropped, the Obama administration could still indefinitely detain people, under what authority?

HS: Well, they are claiming the authority under a statute passed by Congress. The authorization for use of military force that was passed soon after 9/11. It’s a congressional resolution that authorized the administration to use military force against members of Al Queda and associated forces. The administration currently continues the overly broad definition or interpretation of that resolution to permit military detention of people who properly should be captured and prosecuted within criminal justice systems as opposed to militarily detained.

SK: Lisa Hajjar, what is now the status then, officially, of those people now being held at U.S. prison facilities like Guantanamo. . . .

Lisa Hajjar: Well, it’s totally up in the air and I think that many of the lawyers representing cases down there are quite frustrated because they are seeing what’s happening with the Obama Administration. For instance, as Hinna had just said, that doing away with the Enemy Combatant status simply shifted things over. So they continue to be held, but under some new legislation. Basically, my understanding is that the Obama administration is taking a very problematic position which is essentially asserting that courts are not ultimately going to be able to resolve the final status of these people. I mean even those who have actually been completely vindicated and cleared for release. What the Obama Administration is essentially doing now is shifting it to a diplomatic question. I mean scrambling to try to find countries that will take the people who are deemed to be no longer deemed a threat. For example, the [INAUDIBLE] and others. In part, this is due to the fact that a number of Republicans from a number of states have asserted that “hell no, these people aren’t coming into federal lock ups in their states. So it’s the question of even bringing people into the continental United States that is a problem. So being shifted into a diplomatic question and that’s where things seem to be headed right now.

SK: Well, Lisa, do you think that the announcement by the Justice Department that it’s dropping the term may have been more for PR purposes, perhaps even a little premature, if they haven’t even come up with an alternative yet?

LH: Well, I think what it signals and I agree completely with everything that Hinna had just said, but I think that ultimately what it does is criticizes the Bush Administration’s unitary executive pieces. But it actually follows directly on what the Bush Administration did since 2004, after the exposure of the torture memos, when people started realizing what these unitary executive pieces meant, then the Bush Administration started relying on that September 21, 2001 authorization to use military force, as their Get Out of Jail Free Card. Essentially saying everything they had done had in fact been authorized by Congress. So Obama, in using the authorization to use military forces as its basis, is both criticizing the kind of wildly, overreaching executive power. But also keeping all of the essential options open that the Bush Administration had established. I see it as something along those lines.

SK: Well, speaking of torture, Hinna, the Red Cross had a secret report that has been long concealed and just newly revealed. A report that strongly suggests that CIA interrogation methods in such prisons where so called Enemy Combatants were being held constitutes torture. According to International Law the Washington Report has a detailed report on it today. Do you think that will have any impact on where the Obama Administration goes. I mean this is a pretty embarrassing finding.

LH: I think it will have an impact. And I don’t think that there’s any question of suggestion left. I think that the report establishes that the United States is part of its secret interrogation and detention program and that the CIA did in fact torture people. And what this does is places the Obama Administration in a position of really having to think long and hard about what they’ve been saying about wanting to look forward instead of backwards with respect to transparency and accountability. I think that this will just add to the pressure to really have an accounting of what happened, when, why and who was responsible and to do so publicly so that we know what happened in the name of this country and its people and who authorized it so that we can have an accounting and move forward.

SK: Lisa, former vice president Dick Cheney, who is very strongly implicated in authorizing the torture at such sights, on an interview on CNN on Sunday answered a question about the enemy combatant issue and he basically said that what the Bush Administration did was legal and in accordance with our constitution and that Obama’s actions will now make the world less safe. How do you respond?

LH: Dick Cheney, even just thinking about the expose from a week and a half ago Seymour Hersh that Dick Cheney was running death squads out of his office. I don’t think that anyone can take anything Dick Cheney says seriously, and I don’t mean this lightly. The argument what the Bush Administration did was legal… He’s still INAUDIBLE the same lines. That basically were the foundation of policies that in fact have been categorized by court after court and by the Obama Administration, is not legal. Which is essentially allowing the executive branch to carve out policies and disregard for all laws and then get the impremature ideological motivated lawyers serving in the office of legal counsel. Of who, John Hugh is the most prominent example to basically provide legal cover and then say, Look! Lawyers say it is legal and therefore it’s legal. Those theories have been shot down over and over again, but Dick Cheney has no capacity for morose or regret or self realization about the horrible things he’s done to this country.

SK: Let’s talk about Guantonamo and those people who are still there as well as others in U.S. run prisons around the world. Hinna, what would you suggest or advice to the Obama Administration? One of you suggested leaving it to the courts, but there’s the argument that many have made that these are people who have been in prison seven years, some of them have been tortured and if released are going to come back to hit the United States. Which doesn’t leave too many options. What do you think?

HS: Well, I actually think that there are a lot of options, and that those options are far better policy than anything that has come in the last eight years. And continuing on that policy and any hint of not turning our back with finality on those policies is what’s going to get us into trouble as opposed to get us out of trouble. And some of these options are One, for those individuals for whom the United States has evidence that they engaged in wrongdoing, those individuals should be charged. And they should be charged in federal courts which have tremendous credibility around the world and have withstood the test of history and time with respect to being courts that are respected. Two, for people for whom there is no evidence of wrongdoing , they should be released and release should be to places where they are not going to be subjected to torture or further injustice and it can and should be to places with programs that help in their rehabilitation and reintegration into society. To address concerns about people going back to some kind of conflict. By the way, it is a concern that is broadly made, but when you look at the numbers it is entirely unclear who the Bush Administration was talking about when it said that people have gone back to engage in conflict against the United States.

SK: And what about financial compensation to these people, too? For all the years that they were tortured in prison.

HS: Well, one of the things that is actually being pursued right now in court. There’s an important case, Ridsuel, which was born on behalf of the number of British detainees who were held at Guantonamo and they are seeking compensation for what was done to them. And unfortunately the Obama Administration has continued the position that the Bush Administration had that they cannot receive damages for the harm that was done to them because officials are protected by official immunity for the wrongful and illegal conduct that they engaged in.

SK: Finally, Lisa Hijjar, do you agree with Hinna’s suggestions and would you like to add anything as well in terms of advice you would give the Obama Administration and the Justice Department?

HS: Well, I think the prosecution of the top officials responsible for the U.S. torture policy would be absolutely essential as a means of restoring the rule of law and deterring any future likelihood that some administration down the line would do such great damage to our national institution. I believe that even if there is a truth commission, at least the top officials should face prosecution. That’s essential for the rule of law.

Special Thanks to Celina for transcribing this interview