Friday, February 13, 2009
The U.S. District Court for the District of Columbia twice this week signaled its frustration with the Obama administration's refusal to refine its position on the definition of "enemy combatant" in detainee cases before the court.
The administration filed a Response on February 9 urging the court not yet to address the definition of "enemy combatant." (Thanks to SCOTUSBlog for the administration's Response.) The administration claimed that any movement would be premature given President Obama's order to review the disposition of all detainees at Guantanamo. (See my previous post here.) Moreover, the administration argued, the definition of "enemy combatant" could only be determined in the context of specific facts of specific cases at the merits stage.
Judge Bates on February 11 rejected the administration's invitation to defer indefinitely and ordered the administration to file any refinement to its position on the definition of "enemy combatant" by March 13, 2009. He specifically rejected the administration's proposal to define "enemy combatant" only in the context of specific cases:
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.
(Emphasis in original.)
Judge Walton followed suit just yesterday in a related set of cases. But Judge Walton's order requires the administration to recommend a plan for resolving the definition in a February 18 hearing. (There are other significant questions in this case: Whether the administration may detain an enemy combatant indefinitely without showing a prospective threat; whether the administration may detain an enemy combatant for the purpose of interrogation, not "incapacitation of a potential combatant"; and whether a detainee's habeas rights "'can be honored if the detainee is never informed of the factual basis of his detention' are all 'important' issues that 'must be addressed by the Court at some point.'")
In language reflecting the court's growing frustration, Judge Walton wrote,
So, while the Court will, of course, provide the respondents with an opportunity to convince it of the virtue of their seemingly preferred approach, the Court also expects the respondents to be prepared to recommend a format and schedule for resolving the issue of the appropriateness of the definition of the term "enemy combatants" previously propounded by the respondents in a generalized and expedient manner if the Court decides to address the issue in that fashion.
These cases have lingered for far too long.
It's not obvious why either of the administration's two stated reasons for delay should cause these cases to drag on any longer. With regard to the second: As Judge Bates made clear in his order, the administration's proposal to define "enemy combatant" on a case-by-case basis is contrary to ordinary process; this looks arbitrary and unfair. And with regard to the first: The administration must surely be close to a definition of "enemy combatant" for the purpose of its review--isn't this the very first thing the review group would do?--and this definition should simply carry over into the administration's litigation position. The review group can later decide to release these detainees or to try them in regular Article III courts (and thus moot these cases); but in the meantime, the administration should keep these cases moving forward.