Federal Judiciary

Judge rules — temporarily — on “enemy” definition

By Akin Gump Supreme Court Practice Group

In the first federal court ruling rejecting a position of the Obama Administration on detention of terrorism suspects, a federal judge in Washington on Wednesday turned aside an Administration plea to go forward with detainees’ challenges without first defining who may be held as an “enemy combatant.” U.S. District Judge John D. Bates decided that no habeas cases can be decided without settling who may be treated as an enemy in the “war on terrorism.”  However, he did give the Administration some added time — until March 13 — to come up with an alternative definition to one that he will be using temporarily. The judge’s order, though written in moderate terms, conveyed some impatience with the government’s initial response.

The temporary definition, the judge said, is the broadest one the government has suggested to date in detainee cases. While that would give the government the broadest authority to hold a terrorism suspect, it also provides a much wider range for detainees’ lawyers to demand information from the government when it seeks to make its case for holding an individual under the definition’s sweeping terms.

While not ruling immediately on how he will define “enemy combatant” before he rules on the merits of any specific detainee case, Judge Bates said he will use the following definition in order to control how much pre-trial information detainees’ lawyers may demand from the government in order to show that the government lacks a sufficient basis for further confinement.  Here is the definition (outlined by the government on Jan. 7, during the final days of the Bush Administration):

“At a minimum, the President’s power to detain includes the ability to detain as enemy combatant those individuals who were part of, or supporting, forces engaged in hostilities against the United States or its coalition partners and allies. This includes individuals who were part of or directly supporting Taliban, al-Qaida, or associated forces, that are engaged in hostilities against the United States, its coalition partners or allies. This also includes any persons who have committed a belligerent act or supported hostilities in aid of enemy forces.”

Judge Bates ruled that, if the government does not use a final opportunity by March 13 to “refine” that definition, he will go ahead and settle that question without the government being able to influence his decision further.

Full post as published by SCOTUSBLOG on February 13, 2009 (boomark / email).