No new definition of “enemy” now
on Feb 9, 2009 at 10:27 pm
The Obama Administration, in its first significant court filing dealing with detainees’ challenges to their imprisonment, urged a federal judge on Monday not to lay down a general definition of who is to be held in confinement as an “enemy combatant.” The judge should decide on the Executive Branch’s authority to detain terrorism suspects only on an individual, case-by-case basis, the Justice Department said in a five-page filing, found here, in U.S. District Court in Washington.
U.S. District Judge John D. Bates, noting that President Obama had announced a wide-ranging new review of detention policy, had asked the Administration last month whether it wished to “refine” the definition of “enemy combatant” the government has been using up to now. That definition provided a broad basis for holding a prisoner, without criminal charges, based on evidence of providing support to terrorist networks or organizations, even if not directly involved in hostilities with U.S. forces abroad.
In Monday’s reply, Justice Department officials said it would be more prudent for Judge Bates — and, by implication, a dozen other federal judges — not to address detention authority in an abstract, generalized way. The filing noted that the President has set up a task force to decide on future policies on holding, transferring, releasing or prosecuting detainees at Guantanamo Bay. The results of that study, the new document said, may mean that judges may not have to actually try some detainee habeas cases. It also indicated that the Department may, in some of these cases, seek delays in the proceedings to give the new task force time to complete its review of detention policy.
The document did not expressly ask Judge Bates to put any cases on hold at this time. Although the filing in no way anticipated what the task force may decide when it finishes its work, with a final report due in 180 days, it at least opened the door for some significant changes even as detainee cases continue to unfold in the District Courts.
It is unclear what impact the filing in Judge Bates’ Court will have on other judges moving ahead with detainees’ habeas cases. U.S. District Judge Richard J. Leon, for example, has been moving rapidly through actual trials of the habeas cases before him, relying on a definition of “enemy combatant” that generally does not require a substantial amount of actual terrorist activity in order to deny a prisoner a release from Guantanamo.
The new Department document also makes no direct mention of detainees now being held by the U.S. military at a prison at Bagram airbase outside Kabul, Afghanistan. Judge Bates has asked the new Administration for its views on that issue, to be filed by Feb. 20.
