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October 28, 2008 6:34 PM

WilmerHale Gears Up for Another Gitmo Battle

Posted by Zach Lowe

When Stephen Oleskey signed up as part of the Wilmer Cutler Pickering Hale & Dorr team that would defend six Bosnians held as "enemy combatants" in Guantanamo Bay, Cuba, he didn't expect to be working on the case for five years.

"We had just become Wilmer Cutler Pickering Hale & Dorr at that point," Oleskey says. "We felt it would be an important case for the firm to take on. Did we think it would last this long? Some people might have."

A Wilmer team led by Seth Waxman won the landmark Boumediene v. Bush case in June, when the Supremes ruled detainees have a right to challenge their detention in court. Wilmer's clients are first in line for those habeas corpus challenges, but one issue remained for them to settle before their hearing: who, exactly, qualifies as an "enemy combatant" that the government can hold indefinitely if it has sufficient evidence to do so?

A new Wilmer team, sans Waxman, argued that matter in the Boumediene habeus challenge last week at U.S. District Court for the District of Columbia. Judge Richard Leon crafted a compromise between a Justice Department definition he believed was too broad and a Wilmer version he thought of as too narrow.

The definition is the same as the one the Department of Defense created in 2004 and Congress later adopted in the Military Commissions Act of 2006. At its crux, Leon's definition says that for someone to be called an enemy combatant, they must "directly" assist any hostile act against the U.S. and its allies. As SCOTUS blog notes, Leon's definition is quite similar to the one government lawyers proposed.

We've listed them both here so that you can compare them for yourselves:

What the government wanted: "An enemy combatant is an individual who was part of or supporting forces engaged in hostilities against the U.S. or its coalition partners. This includes an individual who was part of or supporting Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the U.S. or its coalition partners. This also includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces."

What Leon decided: "An enemy combatant is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the U.S. or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces."

The Wilmer team proposed a more limited definition focused on soldiers or civilians who directly engage in armed action against the U.S.

"The judge's ruling was not what we wanted," Oleskey says, "but it didn't go as far as the government wanted."

Oleskey and Fleming, who expect the habeas hearing for the Boumediene Six to start sometime late next week, are somewhat optimistic: in an updated court filing, the government dropped allegations that the men planned to bomb the U.S. Embassy in Bosnia in 2001. The government's claims now rest on evidence that the men worked for charities linked to Islamic terror groups and planned to travel to Afghanistan to aid the Taliban after the Sept. 11 attacks.

The lawyers would not say whether the men had purchased plane tickets to Afghanistan or reveal much of the evidence against their clients; about 90 percent of the evidence is classified, Oleskey says.

Either way, the team is ready.

"This is a case of the government far over-reaching its powers," Oleskey says. "And that inspires us to work hard on this case every day."

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