WASHINGTON Lawyers sparred Thursday over how close a suspected terrorist must be to attacking the United States before he legally can be held without charges as an enemy combatant.
The federal judge overseeing the legal debate, which largely will decide the fate of hundreds of men being held at the U.S. Naval Base at Guantanamo Bay, Cuba, said the issue should have been resolved a long time ago.
U.S. District Judge Richard J. Leon said the Justice Department and attorneys for six Bosnian detainees at Guantanamo were too far apart in their arguments over who can be considered an enemy combatant.
It s probably going to be somewhere in the middle, Judge Leon said at the end of nearly two hours of debate.
The judge is expected to issue his own definition Monday before beginning weeks of hearings over whether the men at Guantanamo may be detained legally.
Thursday s hearing featured attorneys for a group of Bosnians, including Lakhdar Boumediene, whose landmark case in front of the U.S. Supreme Court last summer gave detainees the right to challenge their detention in federal courts.
The government initially detained Mr. Boumediene and the other five men on suspicion of plotting to bomb the U.S. Embassy in Sarajevo in October, 2001. The Justice Department backed off those accusations this week, according to the detainees attorneys.
Much of the evidence that remains against the Bosnians is classified and cannot be discussed in open court, or even with the detainees themselves.
Deputy Assistant Attorney General John O Quinn said people who helped organizations like al-Qaida or the Taliban in attacking the United States or had plans to do so could be held as enemy combatants.
You have persons who have a plan to join the battle in Afghanistan, Mr. O Quinn told the judge. It doesn t make a difference that they had not yet done so.
Judge Leon noted that even the definition of assisted or supportive could be squishy.
Obviously, moral support is not going to be enough, is it? Judge Leon said.
Mr. O Quinn said it would not be, but fund-raising, for example, would. The detainees attorneys argued that none of the men had taken steps to knowingly assist al-Qaida or the Taliban, which was ousted from power in Afghanistan by a U.S.-led invasion in 2001.
In court documents, the attorneys describe the six Bosnians as a group of acquaintances, several of whom didn t know the others, who did not engage in hostile acts against the United States or its allies.
Attorney Mark C. Fleming called the government s allegations an inchoate plan by unarmed men sitting at home in Bosnia. He asked Judge Leon to follow long-standing international definitions of an enemy combatant as soldiers from hostile states or civilians captured on a battlefield.
Mr. Fleming said the six Bosnians fit neither description, and that the government s definition could serve as a blank check for the executive to go after any organization who might pose a future threat.