Defining a wartime “enemy”

By Lyle Denniston
on Oct 27, 2008 at 2:13 pm

UPDATE 7:35 p.m.

On Monday afternoon, Judge Leon put his order in memorandum form, and it was published.  It can be found here.  It closely tracks the substance and form of what the judge said in open court, as reported below.

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 Deferring to the Pentagon and to Congress, U.S. District Judge Richard J. Leon on Monday reached back four years for a definition of wartime enemy status that will guide his rulings on whether some 20 Guantanamo Bay detainees must continue to be confined, or should be released. In an eight-minute hearing, the judge said he had settled on this definition:

“ ‘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.”

That is the formulation the Pentagon put into effect on July 7, 2004, to guide the detention decisions to be made by “Combatant Status Review Tribunals.” More than 550 CSRT panels applied that definition, and fewer than 50 of them found that the prisoner involved was not an “enemy combatant.” Judge Leon said that Congress had later embraced something close to that definition.

The Monday ruling marked the first time that a federal court had given a fixed definition of “enemy combatant,” even though four judges on the Fourth Circuit Court had tried their hands at defining the phrase in another combatant case. Judge Leon was mildly disapproving of that effort on Monday, saying that “I do not believe it is the province of the Judiciary to draft definitions.”

The judge said that definitions proposed to him last week by lawyers for the government and for detainees went “too far.” After thinking further about it over the weekend, and doing some additional reading, Judge Leon said he had decided to resist the “great temptation” to “engage in judicial craftsmanship.”

Instead, he said, he did what he called the “prudent thing” and looked back over various definitions used by the government over the past four years, and “happily” came upon “the very first one crafted by the Department of Defense for the CSRTs in 2004 that was later, in effect, blessed by Congress in 2006 [in the Military Commissions Act].”

He added: “Notwithstanding that the Supreme Court and the [D.C. Circuit] Court of Appeals have resisted the opportunity to pass on the lawfulness of this definition, this Court will require the parties to use the same definition that was used in the CSRTs.”

His role, he said, would be to decide any legal questions that applying that definition suggested, and he said that, in deciding whether the government has met its burden in specific cases of satisfying that definition, he would consider that to be a “mixed question of law and fact.”

The first group of cases in which Judge Leon will rule on the detainees’ habeas challenges to continued confinement are the cases led by Boumediene v. Bush (District Court docket 04-1166). The judge has not yet set a final date for the hearing on the merits of the habeas petitions in those cases. He discussed scheduling with lawyers for both sides in a closed-door hearing later Monday morning.

The definition on which the judge finally settled was very close, in some respects, to a proposal advanced by Justice Department lawyers.  However, the judge’s version omitted the broader language that opened the government’s proposal: “An enemy combatant is an individual who was part of or supporting forces engaged in hostilities against the United States or its coalition partners.” 

Lawyers for detainees said after the open session that they regarded the judge’s definition as better than the Justice Department proposal, but said they wanted to go back and compare it with  the actual wording of the Pentagon original version.  Attorneys Stephen H. Oleskey and Robert C. Kirsch told reporters that the judge had reserved some “personal responsibility” for applying the definition to given factual scenarios, and they welcomed that.

The definition adopted by the judge is markedly different from that proposed by detainees’ counsel.  They had suggested that an enemy combatant should be defined only as someone who was a member of a foreign government’s armed forces engaged in hostilities, and civilians who directly participated in hostilities as part of an organized armed force.  Attorneys Oleskey and Kirsch, however, noted that the judge’s order omitted the more open-ended proposal of the government to cover anyone supporting hostile forces.

Justice Department lawyers did not meet with reporters after the session.