An inquiry into “enemy” status
on Oct 22, 2008 at 4:34 pm
In a hearing that could have major consequences for the government’s entire program of indefinitely detaining terrorism suspects, U.S. District Judge Richard J. Leon on Thursday confronts the outwardly simple issue of who qualifies as an enemy — specifically, an “enemy combatant.” Only if a prisoner is so designated can the government continue to keep that individual in prolonged custody. Absent such a designation, in other words, a detainee must be released.
The definition is also a key to who can be tried for war crimes before a U.S. military commission.
Judge Leon, who is moving on what he has called a “compressed” schedule to decide the two dozen Guantanamo Bay habeas cases in his Court, told the Justice Department and Pentagon two months ago that if the  legal basis for detaining any prisoner was the status of “enemy combatant,” then “the Government must provide the definition of enemy combatant upon which it relies.”
That has produced a sharp conflict between the definition the Bush Administration has put forward, and the one proposed by lawyers for the detainees in cases before Judge Leon.
Under the government’s more sweeping definition, an enemy combatant is not only one who engaged directly in hostilities against the U.S. or “its coalition partners,” but also anyone who supported such forces. Any person who “committed a belligerent act or has directly supported hostilities in aid of enemy armed forces” qualifies, under that approach. (The Justice Deparment offered that definition with a qualifying comment, saying it would rely on it before Judge Leon but do so without conceding that the definition “encompasses the full range of the President’s authority with regard to the detention of enemy combatants.”)
The detainees’ counsel, by contrast, would confine the definition almost exclusively to someone captured in a battlefield situation — essentially, a soldier or someone acting as a soldier.  It would apply to those in the military of a foreign government directly engaged in hostilities, or to civilians who themselves participated directly in “hostilities as part of an organized armed force.” Those who meet that definition, this approach suggests, “may be deliberately targeted with deadly force, whereas civilians taking no part in hostiliies may not.”
On Monday, the detainees’ attorneys filed a 23-page legal memorandum spelling out in full how they came to the definition they recommend to Judge Leon. That document can be found here. The Justice Department on Wednesday afternoon filed a response; it can be read here. The hearing before Leon, an open session, is set for 3 p.m. Thursday.
 The detainees’ lawyers locate their definition in traditional law-of-war principles.  Neither the 9/11 Resolution Congress passed after the 2001 terrorist attacks, authorizing the President to use military force to track down the attackers, nor the Constitution’s grant of power to the President authorizes any use of armed force against individuals who are not combatants, the memorandum argued.
“U.S. military doctrine and practice are clear…that civialns who do not directly participate in hostiliies cannot be treated as ‘combatants,'” the document contended.
Expressly disputing the government contentention that one who supports a direct participant in hostilities qualifies as a “combatant,” the memorandum asserted that long-standing intepretation and practice “have made clear that the ‘direct participation’ standard is a narrow on requiring far more than mere ‘support’ of an enemy. Thus civilians who are doing paperwork for an enemy force, manufacturing supplies, growing victory gardens, shouting encouragement, or personally planning to join the fray at some time in the future are not ‘enemy combatants.’ ”
But, “if a civilian takes up arms or takes part in an armed conflict in a way that has a direct causal relationship to harm done to the enemy, the civilian becomes targetable,” the memorandum added. Thus, it suggested, a civilian comes within the definition only by engaging in “immediate and actual action on the battlefield…A civilian is not converted into an enemy combatant merely by supporting an armed force in a manner only tangentially related to combat operations.”
While conceding that “the war with Al Qaeda is different in many ways from prior wars, including not least its potential duration,” the document added that “those differences do not fundamentally change the meaning of the words ‘enemy combatant,’ nor do they justify killing or indefinitely imprisoning civilians for conduct falling short of direct participation in hostilities against the United States….Congress has stated no intent to deviate from the law-of-war protections for civilians, and there is no basis for this Court to do so either.”
The memorandum concludes that the detainees in the 24 cases do not qualify as “enemy combatants” because they are not citizens of any nation at war with the U.S., nor were they involved personally in the 2001 terrorist attacks. Thus, if they are to be designated as enemies, it added, their must be proof that they took a direct part in hostilities as part of an organized armed force against the U.S. — something the government has not shown, the brief concluded.
In reply, the Justice Department urged Judge Leon to reject the detainees’ “effort to place crippling judicial limits on the United States’s authority to detain militarily members or supporters of al-Qaida’s terrorist network, the Taliban, or associated forces.”
The courts, the Department argued, “need look no further” than the 9/11 Resolution “for the authority to detain persons who were members or supporters of al-Qaida.” Moreover, it argued, the law of war “in no way limits the U.S.’s application of necessary and appropriate force to non-state actors, and American history is replete with examples of military force being used against irregulars such as al-Qaida.”
Detention of the individuals involved in the 24 cases, the brief contended, is justified also by “the President’s authority under the Constitution as commander-in-chief.” To support that proposition, the brief quoted from a 2005 ruling by Judge Leon himself in a detainee habeas case.
The Department said that the information it has already provided in court shows that these detainees may be treated as “enemy combatants.” It said it would buttress that information at hearings on the merits of the habeas challenges.
The prisoners, the response said, “clearly associated themselves with an al-Qaida member, facilitator and fighter and had planned to join the fight against the United States on a battlefield. The United States was empowered to take military action to remove the threat they posed, including through detention for the duration of hostilities. Simply put, intercepting enemies who plan to join the battle saves the lives of American soldiers on the battlefield, as well as citizens back home.”
 The current war, the document asserted, is one in which “the active ‘battlefield’ has already included New York City, Arlington, Virginia, and rural Pennsylvania.”
The fact that the Supreme Court has left the reach of the “enemy combatant’ concept to the lower courts in the first instance, the brief argued, “is not an invitation for judges to veto such wartime decisions about the appropriate breadth of the enemy combatant definition.”
The detainees’ approach, according to the Justice Department filing, would “fundamentally question the legitimacy of prosecuting the global war against al-Qaida terrorism as a war, rather than as a police operation seeking criminal charges.”
