Judge Narrows Definition of Gitmo’s ‘Enemy Combatants’

Daily News Article   —   Posted on October 28, 2008

(by Tom Ramstack, WashingtonTimes.com) – A court on Monday offered the first judicial ruling on the definition of “enemy combatant,” setting a standard that ultimately could force the government to try or release many of the 255 terrorism suspects detained at Guantanamo Bay, Cuba.

[U.S. District Judge Richard J. Leon ruled that the term “enemy combatant” applies only to detainees who are accused of “supporting Taliban or al Qaeda forces [or an associated group]” in [hostile acts or a] battle against the U.S.]

The decision endorsed a definition proposed by the Defense
Department in 2004 and adopted by Congress in the 2006 Military
Commissions Act. But it was welcomed by attorneys for the six
Guantanamo Bay detainees on trial in the case, who argued that five of
their clients are likely to walk free because of the ruling.

“Now we have a definition that is narrower than what the government
asked for,” said Robert Kirsch, defense attorney for six Algerians who
were arrested in Bosnia in late 2001.

The prosecution initially accused the six of plotting to bomb the
U.S. Embassy in Bosnia-Herzegovina and of planning to travel to
Afghanistan after the Sept. 11, 2001, attacks, purportedly to attend
terrorist training camps.

However, the government dropped its claims about the bomb plot last
week, leaving five of the men accused only of planning to travel to
Afghanistan. The sixth is accused of having spoken with an al Qaeda
member on the telephone.

It “would be quite a stretch to meet [Judge Leon’s] definition” in
the case of the five, said Stephen H. Oleskey, another attorney for the

Judge Leon said he had based his definition on the Pentagon’s 2004
definition of enemy combatants and the 2006 Military Commissions Act,
which established special tribunals to determine whether suspected
terrorists could be detained without the strict standards of evidence
required for regular trials in the United States.

The Supreme Court ruled in June that the Guantanamo detainees have a
constitutional right to challenge their confinement in U.S. federal
courts. The ruling in Boumediene v. Bush is named for Lakhdar
Boumediene, one of the six men listed in the U.S. District Court ruling
Monday in Washington.

Trials for the men are tentatively scheduled to begin in Washington in early November.

Attorneys for the six Algerians, who remain in Guantanamo Bay, had
asked for a definition that says only people with “direct
participation” in hostilities against the United States could be
considered enemy combatants.

Government attorneys asked that anyone who planned to join combat be
defined as an enemy combatant. The only difference between an active
fighter and the six men represented at the hearing Monday is that they
were captured before they could join the battle against the United
States, the government attorneys said.

Justice Department officials said they liked Judge Leon’s ruling Monday, but they did not explain how it would help their case.

“We are pleased that the court has adopted the enemy combatant
definition used for several years by the Department of Defense and look
forward to presenting our case on the merits,” said Dean Boyd, Justice
Department spokesman.

After the ruling, Judge Leon and the attorneys went into a secret
session to determine what evidence can be used at the upcoming trials.
The Defense Department has said that releasing some of the evidence
publicly could imperil Americans if enemy soldiers use it to target
their attacks.

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