Boumediene v. Bush

• Court: U.S. District Court — District of Columbia
• Writing for the Court: Richard J. Leon
• Citation: Boumediene v. Bush, 583 F.Supp.2d 133 (D. D.C. 2008)
• Decision Date: 27 October 2008
• Docket Number: Civil Case No. 04-1166 (RJL).
• Parties: Lakhdar BOUMEDIENE, et al., Petitioners, v. George W. BUSH, et al., Respondents.

583 F.Supp.2d 133

Lakhdar BOUMEDIENE, et al., Petitioners, v. George W. BUSH, et al., Respondents.

Civil Case No. 04-1166 (RJL).

United States District Court, District of Columbia.

October 27, 2008.

Christopher J. Herrling, Seth P. Waxman, Paul Reinherz Quitma Wolfson, Robert J. McKeehan, Wilmer, Cutler & Pickering, Hale & Dorr, LLP, Washington, DC, Allyson J. Portney, Gregory P. Teran, Mark C. Fleming, Robert C. Kirsch, Stephen H. Oleskey, Wilmer, Cutler & Pickering, Hale & Dorr, LLP, Boston, MA, Paul M. Winke, Douglas Frank Curtis, Wilmer, Cutler, Pickering, Hale & Dorr, LLP, New York, NY, for Petitioners.

Judry Laeb Subar, Paul Edward Ahern, Ronald James Wiltsie, Scott Michael Marconda, August Edward Flentje, Frederick Sherwood Young, James C. Luh, Joseph Charles Folio, III, Nicholas Andrew Oldham, Scott Douglas Levin, Preeya M. Noronha, Terry Marcus Henry, United States Department of Justice, Washington, DC, for Respondents.

MEMORANDUM ORDER

RICHARD J. LEON, District Judge.

The issue before the Court is what definition of "enemy combatant" should be employed in the upcoming hearings in this case. The Government proposes a revised, and somewhat expanded, version of an earlier definition crafted by the Department of Defense. See Resp'ts Mem. Addressing the Definition of Enemy Combatant [Dkt. # 228] at 5. Detainees' counsel, not surprisingly, have proposed a much narrower version, requiring that "civilians," such as the detainees here, "directly participat[e] in hostilities as part of an organized armed force in an armed conflict against the United States." Pet'rs Mem. Regarding the Definition of "Enemy Combatant" [Dkt. # 222] at 20.

I indicated at the close of the hearing on October 23, 2008 that my initial sense was that both sides were going too far, and that I was likely to end up somewhere in the middle. After a weekend of reading and reviewing the voluminous materials and pleadings in this case, my initial impression has not changed. Indeed, I would say it has solidified even further.

So the question becomes, if not those definitions proposed by the parties, what definition? The temptation is great to accept both sides invitation at oral argument to engage in the type of judicial craftsmanship recently exhibited by no fewer than four distinguished Federal Circuit judges in al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir.2008). However, notwithstanding that temptation, I do not believe, on further reflection, that it is the province of the judiciary to draft definitions. 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 Authorization for Use of Military Force, Pub.L. No. 107-40 (2001) (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.

Accordingly, 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...