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
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents