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A new chance to define “enemy”

A federal judge in Washington, giving the new Obama Administration an early chance to directly influence the scope of legal rights of Guantanamo Bay detainees, on Thursday invited the government — if it wishes — to offer a new definition of “enemy combatant.”  U.S. District Judge John D. Bates set a Feb. 9 deadline for such a filing, issuing an order in Hamlily v. Obama (District docket 05-763), and two other cases.

Presumably, the definition will be one of the issues that will be faced during the broad new review of Guantanamo detainee policy that President Obama ordered on Thursday.  Within the ranks of the Obama Justice Department are newly named officials who have been strong critics of the “enemy combatant” designation used by the Bush Administration.

The definition of “enemy combatant” is, of course,  crucial in the detainees’ habeas challenges to their confinement.  If a prisoner is found to meet the definition, that has determined whether he is detained and whether he remains detained by the U.S. military.  It also has some effect on a detainee’s eligibility to be prosecuted for war crimes by a military commission.

Such a definition has been at the center of controversy continuously since the Bush Administration, in the summer of 2004, first spelled out its version for use in initial detention rulings by Pentagon panels — so-called “Combatant Status Review Tribunals.”  (That version was used in Tribunal cases involving more than 550 detainees, and fewer than 50 of those cases found that the prisoner did not meet the definition.)

And now, in the wake of the Supreme Court’s ruling last June giving detainees a constitutional right to challenge their continued confinement, the “enemy combatant” issue is a central question before each of the federal judges involved in deciding some 200 habeas cases.

U.S. District Judge Richard J. Leon, who has completed more contested habeas cases than any of his colleagues in Washington, last October became the first federal court to give a fixed legal definition of “enemy combatant.”  In fact, he chose the one the Pentagon had first adopted in July 2004 — much more favorable to the government than what detainees’ lawyers had proposed.

Here is Judge Leon’s version: “An ‘enemy combatant’ is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the Unied States or its coalition partners.  This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”

Detainees’ lawyers, in pleas to Judge Leon, 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 hostilies as part of an organized armed force.

On Thursday, Judge Bates noted that he was “currently reviewing the parties’ submission in anticipation of a ruling regarding the appropriate definition of ‘enemy combatant’ for use in these habeas cases.”  His order added: “The Court recognizes, however, that the new Presidential administration may wish to review the Government’s current position regarding the appropriate definition of ‘enemy combatant’ to be used in these and other habeas cases involving Guantanamo Bay detainees.”

Thus, he said, he was inviting the government “to submit any refinement of their position on the appropriate definition of ‘enemy combatant’ by not later than February 9, 2009.”

The three cases before him were filed initially against President Bush as the lead “respondent.”  Judge Bates noted that federal court rules required that President Obama now be substituted “as the new lead respondent.”