                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 ADEL HAMLILY,
        Petitioner,
                v.                                           Civil Action No. 05-0763 (JDB)
 BARACK OBAMA, et al.,
        Respondents.


 WALEED SAEED BN SAEED ZAID, et al.,
        Petitioners,
                v.                                           Civil Action No. 05-1646 (JDB)
 BARACK OBAMA, et al.,
        Respondents.


 ABDUL HAMID ABDUL SALAM
 AL-GHIZZAWI,
        Petitioner,
                v.                                           Civil Action No. 05-2378 (JDB)
 BARACK OBAMA, et al.,
        Respondents.


                                             ORDER

       The Court's January 22, 2009 Order requested that respondents "review the Government's

current position regarding the appropriate definition of 'enemy combatant' to be used in these and

other habeas cases involving Guantanamo Bay detainees [and] . . . submit any refinement of their

position on the appropriate definition of 'enemy combatant' by not later than February 9, 2009."

That order was prompted by the change in the Executive Branch Administration on January 20,

2009. In their February 9, 2009 filing, respondents have declined to address the substance of the

Court's request, but instead urge "the Court to reserve any ruling on the scope of the
Government's detention authority [i.e., on the definition of 'enemy combatant'] until the Court

reaches the merits of particular cases."

       Under the Case Management Order ("CMO") that governs these cases, see Hamlily v.

Obama, Civ.A.No. 05-0763 (dkt. ent. #116), the date by which the parties and the Court will

need to begin wrestling with the merits of these cases is fast approaching. And as in most civil

and criminal proceedings, well before the hearing (i.e., trial) on the merits the parties and the

Court must have a clear, uniform understanding of the key legal standard to be applied -- e.g.,

the criminal charge, or the tort asserted, or the controlling constitutional claim. So, too, here,

with respect to the core controlling legal standard of "enemy combatant" to be applied to the

specific facts in each individual detainee's case.

       Nevertheless, given respondents' representations regarding the Executive Branch's need

for additional time to review these and other Guantanamo Bay detainee cases, the Court is

inclined to delay somewhat its decision on the definition of "enemy combatant." Although the

Court is concerned with petitioners' ability to conduct discovery and file traverses in these cases

without the benefit of an "enemy combatant" definition, the Court concludes that it can manage

the discovery process without first deciding the issue and, more importantly, that petitioners will

not be prejudiced. Where necessary to resolve the scope of discovery obligations under the

CMO, however, the Court will apply the broadest proposed definition of "enemy combatant" --

i.e., the definition proposed in respondents' brief filed in these cases on January 7, 2009. See

Hamlily, Civ.A.No. 05-0763 (dkt. ent. #126). That means that discovery will likewise be broad

based on that definition, but respondents should not be heard to complain, since they have to date

declined to modify their position.

       Respondents' rationale for their proposal to put off deciding the central legal standard of



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"enemy combatant" is not persuasive, and the Court's willingness to permit some delay is only to

accommodate the ongoing "new" Executive Branch review. Hence, the Court will agree to delay

deciding the "enemy combatant" issue even though it rejects respondents' 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. Of course, the

question whether a particular petitioner is an "enemy combatant" is a highly fact-intensive

determination that must necessarily be made on a case-by-case basis in light of the evidence

presented. But the definition of the central legal term "enemy combatant" is not a moving target,

varying from case to case, and the Court intends to rule on that definition before the parties reach

a critical point in these proceedings. That point, the Court concludes, is at the briefing on

motions for judgment on the record.1

       Therefore, it is hereby ORDERED that by not later than March 13, 2009, respondents

shall submit any refinement of their position on the appropriate definition of "enemy combatant."

That will be the last opportunity for respondents to clarify their current position on this

important issue. If respondents choose not to provide any refinement of their position by that

date, then the Court is prepared to decide the issue based on the briefing submitted to date, with

respondents bound to their current position on the definition of "enemy combatant."

       SO ORDERED.

                                                     /s/ John D. Bates
                                                     JOHN D. BATES
                                                 United States District Judge

Date: February 11, 2009


       1
        Under the CMO, respondents' motions for judgment on the record are due by March 20,
2009. However, the Court anticipates that this deadline will likely be extended due to various
discovery disputes that have arisen in these cases.

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