The Aftermath of Boumediene v. Bush

On October 27, 2008, Judge Richard J. Leon of the U.S. District Court for the District of Columbia issued a decision on remand from the Supreme Court in Boumediene v. Bush. In the decision he addressed the definition of “enemy combatant” that the court will use in upcoming hearings in the case. Judge Leon rejected both parties’ proposed definitions, but also rejected the proposition that the judiciary should engage in defining the term. Judge Leon concluded that “the prudent and reasonable course under these circumstances is to review and evaluate the various iterations of the definition drafted by the Executive and/or Congress over the past four years and determine whether there is one version consistent with both the AUMF and Article II.”

Upholding a definition crafted by the Department of Defense for use in Combatant Status Review Tribunals and approved by the Supreme Court in Hamdan v. Rumsfeld, Judge Leon concluded that the term “enemy combatant” includes individuals “who [were] 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 will hold hearings in the Boumediene case on November 6, 7, 10, 11, 12, and 13. Portions of the hearing were public on November 6, 2008, but Judge Leon has closed the court to the presence of the public and the detainees based on national security concerns. As noted in the New York Times, the detainees’ lawyers have not been permitted to discuss classified evidence with their clients. Department of Justice Lawyers submitted an additional file of sealed evidence to Judge Leon and instructed the Judge to open the envelope if the evidence presented during the closed hearings is insufficient to justify continued detention.