Monday, June 22, 2009

When Does a Terrorist Stop Being a Terrorist?

In a very interesting opinion D.C. District Judge Richard Leon found that the petitioner in Al Ginco v. Obama could not be held as an enemy combatant any longer because intervening events "vitiated" his membership with al Qaeda. The intervening events came in the form of eighteen months of imprisonment and torture at the hands of the terrorist organization. Al Ginco was apparently apprehended fairly soon after the end this incarceration. The government argued that Al Ginco was still a member of al Qaeda because after the incarceration was over he travelled to an al Qaeda safehouse and spent time in a training camp.

In what can only be described as an incredulous and slightly informal opinion (it included two exclamation points) Judge Leon said the government's argument "defied common sense", and chose to believe Al Ginco's story that his post-incarceration activities with al Qaeda were involuntary. This opinion is somewhat of a surprise because Judge Leon is the only D.C. District judge to stick with the Bush administration's scope of detention authority rather than adopting Obama's new standard. Despite that generally more restrictive view, Judge Leon obviously felt that the facts in this case weighed so heavily in the detainee's favor that he could hardly believe the government was making an argument for continued detention.

Hard to say whether this opinion will have much effect on future cases because I'm not sure whether the facts in any other detainee's case are as egregious as these. Nonetheless I think that other detainees could use the three factor test, 1) nature of the relationship before the intervening event; 2) nature of intervening events; and 3) amount of time passed between previous relationship and detainee's capture, as an argument against their own detention.

For a more in depth look at this opinion look at Lyle Denniston's entry on SCOTUSblog.

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