Anthony Clark Arend

From SCOTUSblog:

U.S. District Judge Richard J. Leon ruled on Tuesday that two Guantanam Bay detainees — nationals of Yemen and Tunisia — must remain prisoners of the U.S. military, finding that the government has proved that each is an “enemy combatant.”  In the most significant of the two separate rulings, the judge concluded that the government does not have to prove that a detainee uses arms against U.S. forces or against forces of its coalition partners, in order to fit the judge’s definition of an enemy associated with Al Qaeda or Taliban.

The ruling against the Yemeni captive, Moath Hamza Ahmed Al Alwi, can be found here.  The ruling against the Tunisian prisoner, Hisham Sliti, can be found here.

In both cases, Judge Leon appeared to have relied quite heavily on secret evidence provided by the government and discussed by the judge in separate classified versions of his Tuesday rulings. The judge found that the government had proved to him that the two individuals had traveled to Afghanistan to fight with Taliban forces or to carry on activities, including military training, with Al Qaeda associates or Taliban forces.

It was in Al Alwi’s case that Judge Leon made his ruling that the government need not prove that a detainee actually used arms against U.S. or coalition forces in order to be classified as an “enemy combatant” — the designation that determines the government’s continued authority to prolong detention at Guantanamo Bay.

Al Alwi, the judge ruled, had “close ties to Taliban and al Qaeda forces” before the U.S. attacked Afghanistan following the Sept. 11, 2001, terrorist attacks on the U.,S., and continued to serve with a Taliban unit after the U.S. began bombing targets in Afghanistan in October 2001.

The judge specifically declined to rule on government claims that Al Alwi had served as a bodyguard for Al Qaeda leader Usama Bin Laden, or that he had received military training at a camp closely tied to Al Qaeda.  Both of those accusations, the judge said, were based on statements the government obtained from other, unnamed detainees at Guantanamo.  The judge said he need not try to assess the reliability of these statements, because the government’s other evidence against Al Alwi had “considerable weight.”

Very interesting.

A couple of quick comments.

First, in reading the orders, it can be seen that Judge Leon applied the  definition of “enemy combatant” he articulated in his order in Boumediene on October 27, 2008:

It is unclear to me whether this defintion will stand on appeal. (See SCOTUSblog for a discussion of Judge Leon’s definition.)

Second, Judge Leon did not address the question of how long a person can be detained as an enemy combatant– a point raised, but not definitively resolved by the Supreme Court in Hamdi. Writing for the Court, Justice O’Connor explained: