At this point I am only going to focus on what the Government's position means to my two clients at Guantanamo. It is clear to me that this memorandum was very clearly written to address two separate issues and we should all keep that in mind: the first is what to do about the men who have been held all these long years at Guantanamo and the second is what to do in the future so we never have a Guantanamo again. As they addressed in the memo, the second part will be unveiled in July.
First, and importantly, the term "enemy combatant" has now been dropped by the Obama administration. I take that to mean that neither of my clients are now considered to be "enemy combatants". That is a good thing.
But back to Mr. Al-Ghizzawi and Mr. Razak Ali: Both men were originally determined to be enemy combatants back in 2004 when the Supreme Court ordered that an assessment be made as to whether or not the men were in fact "enemy combatants" (It took two tries for the military to find Al-Ghizzawi an enemy combatant). Razak Ali was found to be an enemy combatant because he was staying in a guesthouse in Pakistan that was raided and amongst the many men staying at that guesthouse was a man that may or may not have been a member of al-Qaeda. There has never been an allegation that Razak Ali even knew the man nevertheless a determination that the man himself is a member of al-qaeda. In laypersons terms he has been held for seven years because of "guilt by association." Al-Ghizzawi was found to be an enemy combatant because he traveled a lot when he was younger (he was a meteorologist for the Government airlines and could travel at a discount) and the military accused him of being a member of an anti Qadaffi organization (which he has steadfastly denied).
The administration is now asking the judges to review the habeas petitions with this definition:
“The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.”
The nuances between this definition and Bush's may not seem clear to the untrained eye but they are important. Under Bush the definition was purposely vague so as to justify holding anyone they wanted to hold. The language is getting tighter and although not perfect most of the men currently held at Guantanamo should be released under this definition because now actual proof of substantial and direct support will be required.
As for my clients: neither has ever been accused of planning or aiding the 9-11 attacks nor have they been accused of being a part of or supporting Taliban or al-Qaeda forces or of being a part of any forces that have committed beligerent acts. In fact, neither has been accused of being involved in any terrorist activity. Up until now they didn't have to be accused of anything specific as it was enough for Bush to allege that they in some vague way "supported" something that Bush did not like....
Let us hope that this is the beginning of the end for Al-Ghizzawi and Razak Ali.