- The Washington Times - Tuesday, October 28, 2008

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.

The classification, used by the Bush administration to hold suspected enemies of the United States without trial for as long as seven years, can be applied to anyone who directly supported al Qaeda, the Taliban or an associated group involved in hostile acts against the United States or its allies, U.S. District Judge Richard J. Leon ruled.

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 detainees.

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.