Was Judge Leon’s earlier ruling on the scope of the government’s detention authority a narrowing construction?

Over at Georgetown's terrific new blog Security Law Brief, co-blogger and buddy Steve Vladeck has posted some very interesting thoughts regarding Judge Leon's recent decision to order the release of 5 out 6 GTMO detainees whose habeas petitions had come before him. Details here.

Steve properly draws attention to the question of how one defines the scope of whatever military detention authority the government may have. I agree with much of what he says, but I do want to quibble regarding a few points. Steve writes:

Judge Leon then suggested that, because the government's evidence is insufficient, he needn't reach whether "commitment to such a plan would be enough, as a matter of law, to constitute 'support' under the Court's definition of 'enemy combatant.'" To me, though, that is the crucial issue, and one for which Leon's earlier ruling in the same case had already tipped the scales. Here is his definition:

An "enemy combatant" is 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.

Contrast this reading with the definition of "unlawful enemy combatant" in 10 U.S.C. § 948a(1)(A), part of the Military Commissions Act of 2006 (emphasis added):

[A] person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).

Unlike the MCA, Leon's definition thus does not allow for the possibility that one can be subjected to military jurisdiction without either committing a belligerent act or "directly support[ing] hostilities in aid of enemy armed forces." That is, Leon's definition does not incorporate the open-endedness of "material support" (which, as one government lawyer once notoriously suggested, seems to include little old ladies in Afghanistan who give money to Islamic charities).

A few thoughts in response to this:

First, Steve is dead-on in drawing attention to the importance of the "support" concept.

Second, I'm not sure that the correct point of comparison is the MCA definition, which by its terms is used to determine who is eligible for trial by military commission rather than who is eligible for military detention for the duration of hostilities. For the latter determination, the government has employed the CSRT definition, and it is that very definition that Judge Leon adopted here.

In any event, the Leon/CSRT definition may be just as expansive as the MCA definition. The latter employs the language "material support", as Steve notes, while the former refers to persons who were "part of or supporting" al Qaeda etc., "includ[ing] any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces." If the quoted language about belligerent acts and direct support of hostilities operates as a limitation on what conduct counts as being "part of or supporting" AQ etc., then I can see the argument for saying that this is narrower than the MCA definition (though note that the MCA definition expressly requires that support be "purposeful," whereas the Leon/CSRT definition omits that phrase). But I'm not convinced that language is best read as a limitation as opposed to just providing a non-exhaustive example (whether it *ought* to be limited to those examples is a different question, of course). It also seems to me that "direct support for hostilities" and "material support[ for] hostilities" may cover much the same terrain.

If that is correct, then Judge Leon's approach to the definitional question in Boumediene does not move the ball very much on the critical question of definition. Presumably Bensayah (the 6^th detainee, whose detainability was confirmed) will raise this issue in his inevitable appeal to the DC Circuit. And of course the issue is there for the other district judges dealing with GTMO habeas petitions to decide; almost inevitably some of them will disagree with Judge Leon's decision to simply follow the CSRT definition. And finally, as Steve notes, the issue is central to al-Marri's cert petition as well.

Comments

[Steve Vladeck]

Wait -- my attempt to pick a fight _worked_?

So, Bobby is right that using the MCA is a bit of a straw-man, but I wonder how much of one... it strikes me that the MCA is the closest Congress has come to giving substantive content to the term "enemy combatant," and I'm not sure what the basis would be for suggesting that that definition may differ (indeed, may be broader) than the one employed for CSRT purposes.

That being said, Bobby is entirely correct that one might read Leon's definition as consistent with the MCA's. I guess I just took him to be suggesting, albeit implicitly, that something more than financial support would be necessary.

This begs a separate question, though: Does "material support" under the MCA mean the same thing as it does under 2339B? Should it?