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How to define an “enemy combatant”

Judge John D. Bates

Judge John D. Bates

On Friday, Febraury 13, Judge John D. Bates issued an order rejecting the Obama Administration request to decide certain detainee habeas cases without first defining the term “enemy combatant.” But Judge Bates allowed the Obama Administation more time to come up with its definition:

Under the Case Management Order (“CMO”) that governs these cases, see Hamlily v. Obama, Civ.A.No. 05-0763 (dkt. ent. #116), the date by which the parties and the Court will need to begin wrestling with the merits of these cases is fast approaching.  And as in most civil and criminal proceedings, well before the hearing (i.e., trial) on the merits the parties and the Court must have a clear, uniform understanding of the key legal standard to be applied — e.g.,
the criminal charge, or the tort asserted, or the controlling constitutional claim.  So, too, here, with respect to the core controlling legal standard of “enemy combatant” to be applied to the
specific facts in each individual detainee’s case.

Nevertheless, given respondents’ representations regarding the Executive Branch’s need for additional time to review these and other Guantanamo Bay detainee cases, the Court is inclined to delay somewhat its decision on the definition of “enemy combatant.”  Although the Court is concerned with petitioners’ ability to conduct discovery and file traverses in these cases without the benefit of an “enemy combatant” definition, the Court concludes that it can manage the discovery process without first deciding the issue and, more importantly, that petitioners will not be prejudiced.  Where necessary to resolve the scope of discovery obligations under the

CMO, however, the Court will apply the broadest proposed definition of “enemy combatant” — i.e., the definition proposed in respondents’ brief filed in these cases on January 7, 2009.  See Hamlily, Civ.A.No. 05-0763 (dkt. ent. #126).  That means that discovery will likewise be broad based on that definition, but respondents should not be heard to complain, since they have to date declined to modify their position.

Respondents’ rationale for their proposal to put off deciding the central legal standard of  “enemy combatant” is not persuasive, and the Court’s willingness to permit some delay is only to accommodate the ongoing “new” Executive Branch review.  Hence, the Court will agree to delay deciding the “enemy combatant” issue even though it rejects respondents’ contention that a decision “on the scope of the Government’s detention authority” should be made in a “case-by-
case” manner, and only upon reaching the merits stage of these proceedings.  Of course, the question whether a particular petitioner is an “enemy combatant” is a highly fact-intensive determination that must necessarily be made on a case-by-case basis in light of the evidence presented.  But the definition of the central legal term “enemy combatant” is not a moving target, varying from case to case, and the Court intends to rule on that definition before the parties reach a critical point in these proceedings.  That point, the Court concludes, is at the briefing on motions for judgment on the record. (footnote omitted)

It will be quite interesting to see what the Obama Administration does. The Bush Administration had provided the following definition (HT: SCOTUSblog) on January 7:

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.

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Welcome! Who am I?



Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.