DoJ's Response to Judge Bates

On January 22nd Judge Bates (D.C. District) issued two orders regarding detainee cases before him. The order in the Hamlily v. Obama case invited the federal government to make filings that would "refine" the definition of "enemy combatant." The order in the case of Maqalah v. Gates offers the government a similar opportunity. A key difference between Hamlily and Maqalah is that Maqalah involves detainees being held at Bagram Air Base in Afghanistan rather than at Gitmo.

Yesterday the Department of Justice filed a response to Judge Bates order in Hamlily. The government's response essentially asks Judge Bates not to rule generally on the President's detention power, in order to allow the newly formed interagency task force to complete its work. For now the government urges to allow for determination of detention authority on a case by case basis rather than making a ruling that would set a general framework for determination of the detention authority. This case by case determination will allow the government to achieve a "prudent and incremental approach" that it feels is the best way to resolve the detainee issue.

The government has thus far not responded to Judge Bates's order in Maqalah. This is probably because the issues in that case are complicated by the fact that the detainees are being held in Afghanistan rather than at Gitmo. The government still makes its case clear in Hamlily as to what its position will be in regards to all similar cases pending before federal courts.

Judge Bates's orders had a positive effect in the sense that it forced the government to solidify its position as to how it wants to proceed in resolving detainee issues. The government made it clear that it is not ready to make any sort of blanket determination as to its powers in detaining "enemy combatants." The new administration's stance on the issue will become more clear once the new task force has had an opportunity to complete its work, and as the government makes more filings in cases that come before federal courts. These orders by Judge Bates do raise the question of whether a federal judge will make a ruling applies to detainee cases in the "abstract" and "general" way that the government is seeking to avoid. Such a ruling could make resolving the detainee issue much more complicated.

For more on this check out SCOTUSBlog's post.