In an earlier post I talked about a government response to an order by Judge Bates of the D.C. District Court. The government response asked that it be allowed to proceed in the Gitmo habeas corpus cases without giving a definition of the term "enemy combatant." The government's position was that the hearings should proceed to the merits stage where the decision to hold each detainee would be made on a case-by-case basis. On February 11th Judge Bates issued an order in response to the government's request. Judge Bates, "reject[ed] [the government's] contention that a decision 'on the scope of the Government's detention authority' should be made in a 'case-by-case' manner, and only upon reaching the merits stage of these proceedings." Because there is a new administration, he was willing to give the government until March 23rd to come up with a definition. Judge Bates said he was unpersuaded by the government's argument because the definition of "enemy combatant" is vital to determining these cases and the definition should not be a "moving target."
D.C. District Court Judge Reggie B. Walton dealt the government a similar blow yesterday when he issued a similar order. Judge Walton's order was a sort of pre-emptive strike against the government making a request similar to the one it made to Judge Bates. The order laid out what the court wanted to talk about at an upcoming global status hearing on February 18th. The order cited Judge Bates's most recent order, and said that the government should "be prepared to recommend a format and schedule for resolving the issue of the appropriateness of the definition of the term 'enemy combatant'." Judge Walton said that he would allow the government a chance to argue its point on not setting a defintion, but it is fairly clear that he does not favor such a position and most likely won't allow the case to proceed without a definition. He expressed concern about how long the cases have been "lingering", and said that it is necessary to come up with a streamlined process to move the cases through the system efficiently and expeditiously.
These orders are not going to make it easy on the government. Both Bates and Walton see setting an "enemy combatant" definition as a way to move the habeas cases quickly because it might allow the court to avoid reaching the merits stage of some of the cases. Bates has made it clear that a defintion will be set one way or another, and Walton, while allowing the government a chance to argue its position on February 18th, seems set on following Bates on this issue. It looks like we could be seeing the Obama administration's definition of "enemy combatant" very soon.