Gitmo Cases Move Ahead in the Courts

by Deborah Pearlstein

While the Bush Administration may have reconciled itself to leaving office with the detention center at Guantanamo Bay still up and running, the U.S. federal courts continue pushing the detainees’ cases ahead toward resolution. After briefing by the parties on their competing definitions of “enemy combatant,” U.S. District Judge Richard J. Leon yesterday announced a ruling:

Enemy combatant’ shall mean an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed belligerent act or has directly supported hostilities in aid of enemy combat forces.

(Scotusblog, as usual, is all over the coverage here.) Since the parties agree that the availability of habeas relief turns on whether Congress’ 2001 authorization for the use of military force authorized the detention of “enemy combatants,” arguments over the scope of the term have been vigorous. Petitioners (with some support from the Supreme Court’s 2004 ruling in Hamdi) have taken the position that whatever the AUMF authorized, it can go no further than the situations in which the laws of war themselves authorize military “force” (including military detention).

Leon says he took the definition more or less directly from the Pentagon’s 2004 guidelines to the Combatant Status Review Tribunals on the base. The definition is slightly narrower than the one the administration had proposed in recent briefing (“an individual who was part of or supporting forces engaged in hostilities against the United States or its coalition partners”). But it’s certainly broader than the definition petitioners had sought, which would have limited the definition to members of a foreign government’s armed forces engaged in hostilities, and (by analogy to targeting law) civilians who “directly participated” in hostilities as part of an organized armed force.

Maybe most interesting about Leon’s brief written opinion (also at the Scotusblog link above) is that it’s not clear international law had much, if anything, to do with it. Indeed, Leon writes that it is the courts’ “limited province” to interpret the definition of “enemy combatant” consistent with Congress’s authorizing statute, and the U.S. Constitution. I read the omission from international law in that list – and his apparent view that he’d just be making stuff up if he did anything other than pick some existing definition with at least some governmental pedigree – as an indication that he doesn’t think existing international law provides an answer to the “what’s a combatant?” question.

In all events, Leon’s definition still leaves key questions remaining – in particular what it means to be “supporting” Taliban or Al Qaeda, and what groups will count as “associated forces.” Stay tuned.

http://opiniojuris.org/2008/10/28/gitmo-cases-move-ahead-in-the-courts/

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