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Two Detainees Found to be “Enemy Combatants”

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:

“Enemy combatant” shall mean an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed belligerent act or has directly supported hostilities in aid of enemy combat forces.

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:

Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress’ grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. See, e.g., Constable, U. S. Launches New Operation in Afghanistan, Washington Post, Mar. 14, 2004, p. A22 (reporting that 13,500 United States troops remain in Afghanistan, including several thousand new arrivals); J. Abizaid, Dept. of Defense, Gen. Abizaid Central Command Operations Update Briefing, Apr. 30, 2004, http://www.defenselink.mil/transcripts/2004/tr20040430-1402.html (as visited June 8, 2004, and available in the Clerk of Court’s case file) (media briefing describing ongoing operations in Afghanistan involving 20,000 United States troops). The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who “engaged in an armed conflict against the United States.” If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of “necessary and appropriate force,” and therefore are authorized by the AUMF.

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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.