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October 30, 2008

Judge Exercises Judicial Restraint in War on Terror Case; Yep, He's a Bush 43 Appointee

There are several War on Terror cases working their way through the courts right now and I was pleasantly surprised by a memorandum order from a federal district court judge on Monday in the case of Lakhdar Boumediene (yes that Boumediene). I heard that this one was coming last week, but was dreading the judicial response to this issue: "what is the definition of 'enemy combatant'"?

My initial response was that it's none of the courts' damn business to define the term "enemy combatant" as it applies to detainees at Guantanamo Bay. That's up to Congress and the President.

I'm pleased to report that Judge Richard Leon came to the same conclusion (PDF). And he spanked some judges on the Fourth Circuit at the same time.

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... 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 the definitions crafted by either the Executive or the Legislative branch, or both, are consistent with the President's authority under the Authorization for the Use of Military Force...and his war powers under Article II of the Constitution.

Judge Leon eventually concludes that the Department of Defense's very first definition of enemy combatant back in 2004 is the proper one. Judge Leon was appointed to the bench by President Bush in 2002. It's sad that the first instinct after a court issues a decision these days is to check who appointed the judge.

I wrote about the al-Marri mess here.

In related news, the Guantanamo Bay Uighurs' case is proceeding quickly. The government's brief is here (PDF); it is absolutely persuasive on the question of whether Article III courts have the power to admit aliens to the United States (they don't); less so on the issue of keeping alien noncombatants imprisoned indefinitely. The Uighur's brief is due Friday. Oral arguments are still scheduled for November 24.

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posted by Gabriel Malor at 02:09 AM

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