Tuesday, October 28, 2008

D.C. District Defines "Enemy Combatant"

Judge Richard Leon of the D.C. District issued an order yesterday defining "enemy combatant" in Boumediene v. Bush, the habeas case ordered by the Supreme Court in its opinion last term of the same name.  Judge Leon drew from the DoD's 2004 definition used by the CSRTs that for these very six detainees.

From the Order:

It is our limited role to determine whether definitions crafted by either the Executive or the Legislative branch, or both, are consistent with the President's authority under the [AUMF] and his war powers under Article II of the Constitution.  And, if the definitions are consistent with the Constitution and the AUMF, we must interpret the meaning of the definition as it applies to the facts in any given case.  Because, in the end, regardless of what definition is used, it will be a mixed question of law and fact as to whether the Government has met its burden of proof.

And the definition:

An "enemy combatant" is 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 a belligerent act or has directly supported hostilities in aid of enemy armed forces.

Judge Leon said that this definition "was . . . in effect, blessed by Congress when, in response to the Supreme Court's Hamdan v. Rumsfeld decision, it drafted and passed the [MCA]."

Lyle Denniston at SCOTUSBlog reports that the DoD's 2004 definition was used in 550 CSRTs, and that fewer than 50 found the detainee not to be an enemy combatant.

SDS

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