The new framework is spelled out on page 3 of a legal memorandum filed in federal court Friday:
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-Qaida 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 document, which was filed in a habeas case before Judge John Bates of the U.S. District Court for the District of Columbia, does not spell out "substantial support," nor does it attempt to define "associated forces."
The contours of the new framework "will need to be further developed in their application to concrete facts in individual cases," the memorandum states. It also notes that the administration's views "may evolve," as a multi-agency group, led by Attorney General Eric Holder Jr., develops new detention policy.
"As we work towards developing a new policy to govern detainees, it is essential that we operate in a manner that strengthens our national security, is consistent with our values, and is governed by law," Holder said in a statement. "The change we've made today meets each of those standards and will make our nation stronger."
While the memo gives nods to international law, quoting passages of the Geneva Conventions, it argues that the government's authority to detain suspected terrorists is primarily rooted in Congress' 2001 Authorization for the Use of Military Force. The Bush administration argued that the president had the inherent constitutional authority to detain enemy combatants, regardless of Congress' decisions. Nowhere does that argument appear in Friday's document.
"The concept of presidential power behind the filing is very different than it was before," says Susan Baker Manning, a partner with Bingham McCutchen, which represents six Chinese Uighurs held at Guantanamo.
Breaking sharply with the Bush administration's policy, the memo explicitly states that someone who provides "unwitting" support to al-Qaida or the Taliban is not an enemy combatant.
"They seem focused on getting away from this idea of an accidental enemy combatancy," Manning says. "The government many years ago went before the district court and told the judge that a little old lady in Switzerland who writes a check to a charity thinking it's a charity, and it turns out to be a front for al-Qaida, she would be an enemy combatant."
The memo gives examples of evidence that might be used in support of detention, ranging from "formal membership, such as through an oath of loyalty, to more functional evidence, such as training with al-Qaida (as reflected in some cases by staying at al-Qaida or Taliban safehouses that are regularly used to house militant recruits) or taking positions with enemy forces."
The memo also says that the AUMF is not limited to detainees captured on the battlefield, nor does it necessarily require Taliban or al-Qaida membership, noting that many different private armed militants trained and fought alongside the groups. Such persons would be subject to detention under the principles of "co-belligerency."
The Obama administration firmly rejected the argument that the government is limited to detaining al-Qaida leadership or individuals captured directly participating in hostilities, as some detainees' lawyers have argued.
"A contrary conclusion would improperly reward an enemy that violates the laws of war by operating as a loose network and camouflaging its forces as civilians," the memo says.
Michael Ratner, president of the Center for Constitutional Rights, which represents several Guantanamo detainees, called the memo "old wine in a new bottle."
"They don't call them enemy combatants. They call them members of the enemy forces. But the definition used is almost precisely the one they used for enemy combatants," he says. "We don't consider this great progress at all."
This article first appeared on The BLT: The Blog of Legal Times.