The Boumedieneruling left it to the District Court to work out what precise procedures would apply in the Guantánamo habeas corpus cases. Among the issues would need to be a clear articulation of the test to be applied in deciding whether factual and legal grounds existed for each detention of those the Bush administration had labelled “enemy combatants”. In October 2008, Judge Leon became the first District Court judge to articulate and apply such a test in the post-Boumedienelitigation.3He said that the definition of “enemy combatant” formulated in 2004 by the Bush administration for the Combatant Status Review Tribunal (CSRT) scheme at Guantánamo had been “blessed by Congress” when it passed the Military Commissions Act of 2006 (MCA), and that he would therefore apply this definition to the cases before him. Under this definition, an “enemy combatant” was defined as:
“an individual who was 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.”
This definition – global in reach, seemingly indefinite or permanent in duration, and not limited to individuals directly engaged in a particular international armed conflict as that term is understood in international law, or indeed in any hostilities whatever – casts a broad net. This is illustrated by the fact that among those Guantánamo detainees affirmed as “enemy combatants” by CSRTs were people detained far from any international “battleground” as traditionally understood, and not in the territory of a state at war with the USA: detainees were taken from, among other countries, Azerbaijan, Thailand, Bosnia and Herzegovina, Indonesia, United Arab Emirates, Djibouti, Kenya, Gambia and Mauritania, as well as others arrested in houses and streets in Pakistan. Others were taken in Afghanistan, both in and outside of situations of combat. In its definition, the scope and manner of its application, and its consequences under US law, the concept of “enemy combatant” and global “war” against non-state actors had little precedent or basis in international law.
Applying this definition, Judge Leon upheld the detention of Ghaleb Al Bihani in January 2009, a few days after President Obama took office. The case was appealed to the Court of Appeals for the DC Circuit. The Obama administration argued for Judge Leon’s ruling to be upheld. On 5 January 2010 the Court of Appeals did so.
The Court of Appeals said that the case presented two “overarching questions” relating to the Guantánamo detentions: 1) which individuals can the President lawfully detain under laws passed by Congress; and 2) what habeas corpus procedures are the detainees entitled to. Stating that “we aim to narrow the legal uncertainty that clouds military detention”, the panel began its analysis by asserting that the President’s detention powers in this “war” context are not limited by international law: