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Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings

The following section discusses significant rulings made by the federal district courts that are the subject of ongoing habeas litigation.

Recent District Court Rulings Concerning Scope of Executive Detention Authority

In the aftermath of the Supreme Court's decision in Boumediene, federal habeas courts reviewing claims raised by Guantanamo detainees have reached differing conclusions regarding the scope of the Executive's detention authority under the AUMF and the law of war. Judge Richard J. Leon, the first district court judge to rule on this issue post-Boumediene, applied the standard employed by the Department of Defense (DOD) in 2004 CSRT proceedings, which authorized the detention of those who were "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 ... [including] any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed force." More recent rulings by district courts have taken a more limited view of the Executive's detention authority. A few district court judges have held that the Executive has authority to detain persons who were "part of" or "substantially supported" Al Qaeda, the Taliban, or associated forces, so long as those terms are understood to include only those persons who were members of the enemy organizations' armed forces at the time of capture. Other judges have held that the Executive has authority under the AUMF and the law of war to detain persons who were "part of" the Taliban, Al Qaeda, or associated forces, but lacks authority to detain nonmembers who provide "support" to such organizations (though such support may be considered when determining whether a detainee was "part of" one of these groups). As discussed supra, in Al-Bihani v. Obama a three-judge D.C. Circuit panel endorsed the definitional standard used by Judge Leon to assess the Executive's detention authority. It is possible that this issue will be the subject of further litigation, either before the circuit court sitting en banc or the Supreme Court.

Several (though not all) district court judges have concluded that an individual's continuing threat to U.S. security is not a relevant consideration in determining whether he may be lawfully detained under the AUMF. At least one district court judge has expressly held that "the President