44 | Towards the Closure of Guantanamo 79. 80. 81. 57 58 59 60 61 abandoned the classification of “enemy combatants.” On March 13, 2009, in the face of increased litigation after the Supreme Court’s decision in Boumediene, 57 the Government filed a memorandum in every detainee habeas case regarding its detention authority relative to the detainees at Guantanamo Bay. 58 This memorandum submitted a new standard for the government’s authority to hold detainees at Guantanamo. In the filing with the federal District Court for the District of Columbia, the Department of Justice, referring to the Supreme Court’s decisions in Hamdi and Hamdan, 59 submitted that the detention authority conferred by the AUMF does not rely on the President’s authority as Commander-in-Chief and that the scope of his authority under this statute relies on the international laws of war (Geneva Conventions and customary international law). The memorandum also provided that individuals who supported Al-Qaeda or the Taliban were detainable only if the support was “substantial.” Therefore, the new standard did not claim authority to hold persons based on insignificant or insubstantial support. In addition, the new administration also carried out a first review process in 2009 to determine the legal status of each detainee held at Guantanamo. The review concluded that of the 240 persons who were detained at that time, 48 “were determined to be too dangerous to transfer but not feasible for prosecution.” 60 Accordingly, these detainees would remain in indefinite detention without criminal charges pursuant to the Government’s authority under the AUMF. As will be developed in the section assessing the right to periodic review of detention, the U.S. Government initiated a second review process in 2013. The Inter-American Commission welcomes the steps taken by the United States since 2009 in refining the Government’s position on its detention authority and the legal status of detainees held at Guantanamo. However, the IACHR notes that despite these changes in the Government’s position, prisoners are still held at Guantanamo indefinitely without charge, 13 years after the opening of the facility. The National Defense Authorization Act (NDAA) has reaffirmed the authority of the AUMF to detain persons suspected of having participated in the September 11 attacks, or who substantially supported Al-Qaeda, the Taliban, or associated forces, without trial until the end of hostilities. 61 As the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment stated, the NDAA Boumediene v. Bush, 553 U.S. 723, 769 (2008). Respondents’ Memorandum Regarding the Government’s Detention Authority Relative to Detainees Held at Guantanamo Bay, In re: Guantanamo Bay Detainee Litig., No. 08-mc-442 (TFH) (D.D.C. Mar. 13, 2009). Available at: http://www.justice.gov/opa/documents/memo-re-det-auth.pdf. See also, Press Release, Department of Justice, Office of Public Affairs: Department of Justice Withdraws “Enemy Combatant” Definition for Guantanamo Detainees, March 13, 2009. Available at: http://www.justice.gov/opa/pr/2009/March/09-ag-232.html Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004) and Hamdan v. Rumsfeld, 548 U.S. 557, 603-04 (2006). Final Report of the Guantanamo Review Task Force, January 22, 2010, at 25-26. Available at: http://www.justice.gov/ag/guantanamo-review-final-report.pdf National Defense Authorization Act for Fiscal Year 2012, Sec. 1023. Available at: http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540enr/pdf/BILLS-112hr1540enr.pdf. Organization of American States | OAS