Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court
Prepared for Members and Committees of Congress
After the U.S. Supreme Court held that U.S. courts have jurisdiction pursuant to 28 U.S.C. § 2241
to hear legal challenges on behalf of persons detained at the U.S. Naval Station in Guantanamo
Bay, Cuba, in connection with the war against terrorism (Rasul v. Bush), the Pentagon established
administrative hearings, called “Combatant Status Review Tribunals” (CSRTs), to allow the
detainees to contest their status as enemy combatants, and informed them of their right to pursue
relief in federal court by seeking a writ of habeas corpus. Lawyers subsequently filed dozens of
petitions on behalf of the detainees in the District Court for the District of Columbia, where
district court judges reached inconsistent conclusions as to whether the detainees have any
enforceable rights to challenge their treatment and detention.
In December 2005, Congress passed the Detainee Treatment Act of 2005 (DTA) to divest the
courts of jurisdiction to hear some detainees’ challenges by eliminating the federal courts’
statutory jurisdiction over habeas claims by aliens detained at Guantanamo Bay (as well as other
causes of action based on their treatment or living conditions). The DTA provides instead for
limited appeals of CSRT determinations or final decisions of military commissions. After the
Supreme Court rejected the view that the DTA left it without jurisdiction to review a habeas th
challenge to the validity of military commissions in the case of Hamdan v. Rumsfeld, the 109
Congress enacted the Military Commissions Act of 2006 (MCA) (P.L. 109-366) to authorize the
President to convene military commissions and to amend the DTA to further reduce access to
federal courts by “alien enemy combatants,” wherever held, by eliminating pending and future
causes of action other than the limited review of military proceedings permitted under the DTA.
In June 2008, the Supreme Court held in the case of Boumediene v. Bush that aliens designated as
enemy combatants and detained at Guantanamo Bay have the constitutional privilege of habeas
corpus. The Court also found that MCA § 7, which limited judicial review of executive
determinations of the petitioners’ enemy combatant status, did not provide an adequate habeas
substitute and therefore acted as an unconstitutional suspension of the writ of habeas. The
immediate impact of the Boumediene decision is that detainees at Guantanamo may petition a
federal district court for habeas review of the legality and possibly the circumstances of their
detention, perhaps including challenges to the jurisdiction of military commissions. Pertinent
legislation includes H.R. 267, S. 185, S. 576, S. 1547, S. 1548, H.R. 1415, H.R. 1416, H.R. 1585,
H.R. 4986, H.R. 1189, H.R. 2543, H.R. 2710, H.R. 2826, S. 1249, H.R. 5658, S. 3001, S. 3002,
H.R. 2212in and H.R. 6274.
Introduc tion ..................................................................................................................................... 1
Backgr ound ..................................................................................................................................... 3
Rasul v. Bush.............................................................................................................................3
Combatant Status Review Tribunals.........................................................................................5
Court Challenges to the Detention Policy.......................................................................................7
Khalid v. Bush...........................................................................................................................8
In re Guantanamo Detainee Cases...........................................................................................9
Hamdan v. Rumsfeld................................................................................................................10
J urisdicti on ................................................................................................................... ...... 11
The Geneva Conventions and the Law of War.................................................................12
Analys is ............................................................................................................................ 13
Al -M arri .................................................................................................................................. 14
Detainee Treatment Act of 2005 (DTA)........................................................................................17
The Military Commissions Act of 2006 (MCA)...........................................................................19
Provisions Affecting Court Jurisdiction..................................................................................19
Provisions Regarding the Geneva Conventions......................................................................21
Post-MCA Issues and Developments............................................................................................23
Possible Application to U.S. Citizens......................................................................................23
DTA Challenges to Detention.................................................................................................24
Bismullah v. Gates............................................................................................................24
Parhat v. Gates..................................................................................................................26
Boumediene v. Bush.......................................................................................................................28
Constitutional Considerations and Options for Congress..............................................................33
Scope of Challenges................................................................................................................36
The Fact and Length of Detention....................................................................................37
Conditions of Detention....................................................................................................38
Extraterritorial Scope of Constitutional Writ of Habeas...................................................40
Use of Habeas Proceeding to Challenge the Jurisdiction of a Military
Commission ................................................................................................................... 41
Congressional Authority over Federal Courts.........................................................................41
Separation of Powers Issues....................................................................................................43
Legislative Action in the 110th Congress.......................................................................................44
National Defense Authorization Provisions............................................................................44
Habeas Corpus Amendments..................................................................................................45
Bills to Regulate Detention.....................................................................................................47
Conclusion ..................................................................................................................................... 48
Author Contact Information..........................................................................................................49
In the 2004 case Hamdi v. Rumsfeld,1 a divided Supreme Court declared that “a state of war is not
a blank check for the president”and ruled that persons deemed “enemy combatants” have the right
to challenge their detention before a judge or other “neutral decision-maker.” The Court did not
decide whether the same right applies to aliens held as enemy combatants outside of the United 2
States, but held in Rasul v. Bush that federal courts have jurisdiction to hear habeas petitions by
or on behalf of such detainees. The latter decision reversed the holding of the Court of Appeals
for the District of Columbia Circuit, which had agreed with the Bush Administration that no U.S.
court has jurisdiction to hear petitions for habeas corpus by or on behalf of the detainees because
they are aliens and are detained outside the sovereign territory of the United States. Lawyers filed
dozens of petitions on behalf of the detainees in the District Court for the District of Columbia,
where judges reached conflicting conclusions as to whether the detainees have any enforceable
rights to challenge their treatment and detention.
After the Supreme Court granted certiorari to hear a challenge by one of the detainees to his trial
by military tribunal, Congress passed the Detainee Treatment Act of 2005 (DTA). The DTA
requires uniform standards for interrogation of persons in the custody of the Department of
Defense (DOD), and expressly bans cruel, inhuman, or degrading treatment of detainees in the
custody of any U.S. agency. At the same time, however, it divested the courts of jurisdiction to
hear challenges by those detained at Guantanamo Bay based on their treatment or living
conditions. The DTA also eliminated the federal courts’ statutory jurisdiction over habeas claims
by aliens challenging their detention at Guantanamo Bay, but provided for limited appeals of
status determinations made pursuant to the DOD procedures for Combatant Status Review
Tribunals (CSRTs) or by military commissions.
In Hamdan v. Rumsfeld, decided June 29, 2006, the Supreme Court rejected the government’s
argument that the DTA divested it of jurisdiction to hear that case, and reviewed the validity of
military commissions established to try suspected terrorists of violations of the law of war,
pursuant to President Bush’s military order. The Court did not revisit its 2004 opinion in Hamdi v.
Rumsfeld upholding the President’s authority to detain individuals in connection with
antiterrorism operations, and did not resolve whether the petitioner could claim prisoner-of-war
(POW) status, but held that “in undertaking to try Hamdan and subject him to criminal
punishment, the Executive is bound to comply with the Rule of Law that prevails in this
In response to the Court’s decision, the 109th Congress enacted the Military Commissions Act of
2006 (MCA) (P.L. 109-366) to authorize the President to convene military commissions and to
amend the DTA to further reduce the access of aliens in U.S. custody to federal court by expressly
eliminating court jurisdiction over all pending and future causes of action other than the limited
review of military proceedings permitted under the DTA. A federal district judge dismissed
Hamdan’s new petition for habeas corpus on the basis of the DTA, as amended, holding that the 3
MCA is not a suspension of the Writ of Habeas Corpus within the meaning of the Constitution.
The U.S. Court of Appeals for the D.C. Circuit issued an order dismissing other detainee cases
1 542 U.S. 507 (2004).
2 542 U.S. 466 (2004).
3 Hamdan v. Rumsfeld, 464 F. Supp. 2d 9 (D.D.C. 2006).
based on similar reasoning.4 The Supreme Court initially denied the petitioners’ request for 56
review, but later granted the petitioners’ motion to reconsider.
In the consolidated cases of Boumediene v. Bush and Al Odah v. United States,7 decided June 12,
2008, the Supreme Court held that aliens designated as enemy combatants and detained at
Guantanamo Bay have the constitutional privilege of habeas corpus. The Court also found that
MCA § 7, which applied DTA review procedures to petitioners’ claims, did not provide an
adequate habeas substitute and therefore acted as an unconstitutional suspension of the writ of
habeas. The immediate impact of the Boumediene decision is that detainees at Guantanamo may
petition a federal district court for habeas review of the circumstances of their detention.
Although the Court held that DTA review procedures were an inadequate substitute for habeas, it
made “no judgment as to whether the CSRTs, as currently constituted, satisfy due process 8
standards,” and emphasized that “both the DTA and the CSRT process remain intact.” Whether
these procedures violate due process standards, facially or as applied in a given case, and whether
a particular detainee is being unlawfully held, are issues that will be addressed by the District
Court when reviewing the habeas claims of Guantanamo detainees.
In the meantime, the U.S. Court of Appeals for the Fourth Circuit addressed whether it retained
jurisdiction under the MCA to hear a petition on behalf of an alien arrested in the United States
and detained as an enemy combatant. In 2007, the court granted habeas relief to a resident alien
who was arrested in Illinois on criminal charges but then transferred to South Carolina and 9
detained in military custody as an “enemy combatant.” While one judge on the panel dissented
with respect to the holding that the detention was not authorized by Congress, all three judges on
the panel agreed that the MCA did not divest it of jurisdiction to hear the petition,
notwithstanding the MCA’s lack of geographical limits. The government asked for, and was 10
granted, a rehearing en banc. On rehearing, the full circuit agreed that the jurisdictional issue
had been resolved by the recent Supreme Court Boumediene decision, but found little agreement 11
on the other issue presented. As a result, the case is remanded to the district court for a hearing
to determine whether the petitioner is properly detained to be an “enemy combatant.” The
petitioner has reportedly asked the Supreme Court to intervene.
This report provides an overview of the CSRT procedures, summarizes court cases related to the
detentions and the use of military commissions, and summarizes the Detainee Treatment Act, as
amended by the Military Commissions Act of 2006, analyzing its effects on detainee-related
litigation in federal court. The report summarizes pending legislation and provides an analysis of
relevant constitutional issues that may have some bearing on Congress’s options with respect to
the Guantanamo detainees.
4 Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007).
5 Boumediene v. Bush, 127 S.Ct. 1478 (2007).
6 Boumediene v. Bush, 127 S.Ct. 3078 (2007).
7 Boumediene v. Bush, 553 U.S. __, 128 S.Ct. 2229 (2008).
8 Id., 128 S.Ct. at 2270, 2275.
9 Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007).
10 Al-Marri v. Pucciarrelli, Case No. 06-7427 (4th Cir.).
11 Al-Marri v. Pucciarrelli, __ F.3d __, 2008 WL 2736787 (4th Cir. 2008).
The White House determined in February 2002 that Taliban detainees are covered under the 1213
Geneva Conventions, while Al Qaeda detainees are not, but that none of the detainees qualifies 14
for the status of prisoner of war (POW). The Administration deemed all of them to be “unlawful
enemy combatants,” and claimed the right to detain them without trial or continue to hold them
even if they are acquitted by a military tribunal. Fifteen of the detainees had been determined by 15
the President to be subject to his military order (“MO”) of November 13, 2001, making them 16
eligible for trial by military commission. The Supreme Court, however, found that the
procedural rules established by the Department of Defense to govern the military commissions 17
were not established in accordance with the Uniform Code of Military Justice (UCMJ). The
following sections trace the judicial developments with respect to the detention of alleged enemy
Petitioners were two Australians and twelve Kuwaitis (a petition on behalf of two U.K. citizens
was mooted by their release) who were captured during hostilities in Afghanistan and were being
held in military custody at the Guantanamo Bay Naval Base, Cuba. The Administration argued,
and the court below had agreed, that under the 1950 Supreme Court case Johnson v. 19
Eisentrager, “‘the privilege of litigation’ does not extend to aliens in military custody who have
no presence in ‘any territory over which the United States is sovereign.’” The Court distinguished
Rasul by noting that Eisentrager concerned the constitutional right to habeas corpus rather than
the right as implemented by statute. The Rasul Court did not reach the constitutional issue, but
found authority for federal court jurisdiction in 28 U.S.C. § 2241, which grants courts the
authority to hear applications for habeas corpus “within their respective jurisdictions,” by any
person who claims to be held “in custody in violation of the Constitution or laws or treaties of the 20
12 The two most relevant conventions are the Geneva Convention Relative to the Treatment of Prisoners of War,
August 12, 1949, 6 U.S.T. 3317 (hereinafter “GPW”); and the Geneva Convention Relative to the Protection of
Civilian Persons in Time of War, August 12, 1949, 6 U.S.T. 3516 (hereinafter “GC”).
13 White House Memorandum, “Humane Treatment of al Qaeda and Taliban Detainees” (February 7, 2002), available
14 For more history and analysis, see CRS Report RL31367, Treatment of “Battlefield Detainees” in the War on
Terrorism, by Jennifer K. Elsea.
15 Order on Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism, November 13, 2001,
66 Federal Register 57833 (2001)(hereinafter “MO” or “military order”).
16 For an analysis of the military commission rules, see CRS Report RL33688, The Military Commissions Act of 2006:
Analysis of Procedural Rules and Comparison with Previous DOD Rules and the Uniform Code of Military Justice, by
Jennifer K. Elsea.
17 10 U.S.C. § 801 et seq.
18 542 U.S. 466 (2004).
19 339 U.S. 763 (1950).
20 Rasul, 542 U.S. at 478-79. When Eisentrager was decided in 1950, the Rasul majority found, the “respective
jurisdictions” of federal district courts were understood to extend no farther than the geographical boundaries of the
districts (citing Ahrens v. Clark, 335 U.S. 188 (1948)). According to the Court, that understanding was altered by a line th
of cases, recognized in Braden v. 30 Judicial Circuit Court of Ky., 410 U.S. 484 (1973), as overruling the statutory
interpretation that had established the “inflexible jurisdictional rule” upon which Eisentrager was implicitly based.
The Court also declined to read the statute to vary its geographical scope according to the
citizenship of the detainee. Justice Kennedy, in a concurring opinion, would have found
jurisdiction over the Guantanamo detainees based on the facts that Guantanamo is effectively a
U.S. territory and is “far removed from any hostilities,” and that the detainees are “being held
indefinitely without the benefit of any legal proceeding to determine their status.” Noting that the
Writ of Habeas Corpus (“Writ”) has evolved as the primary means to challenge executive
detentions, especially those without trial, the Court held that jurisdiction over habeas petitions
does not turn on sovereignty over the territory where detainees are held. Even if the habeas
statute were presumed not to extend extraterritorially, as the government urged, the Court found
that the “complete jurisdiction and control” the United States exercises under its lease with Cuba
would suffice to bring the detainees within the territorial and historical scope of the Writ.
Without expressly overruling Eisentrager, the Court distinguished the cases at issue to find
Eisentrager inapplicable. Eisentrager listed six factors that precluded those petitioners from
seeking habeas relief: each petitioner “(a) is an enemy alien; (b) has never been or resided in the
United States; (c) was captured outside of our territory and there held in military custody as a
prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United
States; (e) for offenses against laws of war committed outside the United States; (f) and is at all 21
times imprisoned outside the United States.” The Rasul Court noted that the Guantanamo
petitioners, in contrast, “are not nationals of countries at war with the United States, and they
deny that they have engaged in or plotted acts of aggression against the United States; they have
never been afforded access to any tribunal, much less charged with and convicted of wrongdoing;
and for more than two years they have been imprisoned in territory over which the United States
exercises exclusive jurisdiction and control.”
As to the petitioners’ claims based on statutes other than the habeas statute, which included the 2223
federal question statute as well as the Alien Tort Statute, the Court applied the same reasoning
to conclude that nothing precluded the detainees from bringing such claims before a federal 24
The Court’s opinion left many questions unanswered. It did not clarify which of the Eisentrager 25
(or Rasul) factors would control under a different set of facts. The opinion did not address
whether persons detained by the U.S. military abroad in locations where the United States does
Justice Scalia, with Chief Justice Rehnquist and Justice Thomas, dissented, arguing that the habeas statute on its face
requires a federal district court with territorial jurisdiction over the detainee. The dissenters would have read Braden as
distinguishing Ahrens rather than overruling it. For more analysis of the Rasul opinion, see CRS Report RS21884, The
Supreme Court 2003 Term: Summary and Analysis of Opinions Related to Detainees in the War on Terrorism, by
Jennifer K. Elsea.
21 Rasul, 542 U.S. at 475 (citing Eisentrager, 339 U.S. at 777).
22 28 U.S.C. § 1331(“The district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”).
23 28 U.S.C. § 1350 (“The district courts shall have original jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the United States.”).
24 Rasul, 542 U.S. at 484 (“nothing in Eisentrager or in any of our other cases categorically excludes aliens detained in
military custody outside the United States from the ‘privilege of litigation’ in U.S. courts”).
25 The Court noted that “Eisentrager made quite clear that all six of the facts critical to its disposition were relevant
only to the question of the prisoners’ constitutional entitlement to habeas corpus.” Rasul, 542 U.S. at 476 (emphasis
not exercise full jurisdiction and control would have access to U.S. courts. The Hamdan opinion
seems to indicate that a majority of the Court regarded Eisentrager as a ruling denying relief on 26
the merits rather than a ruling precluding jurisdiction altogether. Under this view, it may be
argued, there was no statutory bar precluding detainees in U.S. custody overseas from petitioning
for habeas relief in U.S. courts, although it may be substantially more difficult for such prisoners
to identify a statutory or constitutional infraction that would enable them to prevail on the merits.
The Court did not decide the merits of the petitions, although in a footnote the majority opined
that “Petitioners’ allegations—that, although they have engaged neither in combat nor in acts of
terrorism against the United States, they have been held in Executive detention for more than two
years in territory subject to the long-term, exclusive jurisdiction and control of the United States,
without access to counsel and without being charged with any wrongdoing—unquestionably
describe ‘custody in violation of the Constitution or laws or treaties of the United States.’” The
opinion left to lower courts such issues as whether the detentions are authorized by Congress,
who may be detained and what evidence might be adduced to determine whether a person is an
enemy combatant, or whether the Geneva Conventions afford the detainees any protections. The
Court did not address the extent to which Congress might alter federal court jurisdiction over
detainees’ habeas petitions, but Boumediene appears to foreclose the option of eliminating it
completely, at least without an adequate substitute procedure. This issue is discussed more fully
In response to Supreme Court decisions in 2004 related to “enemy combatants,” the Pentagon
established procedures for Combatant Status Review Tribunals (CSRTs), based on the procedures 27
the Army uses to determine POW status during traditional wars. Detainees who are determined
not to be enemy combatants are to be transferred to their country of citizenship or otherwise dealt 28
with “consistent with domestic and international obligations and U.S. foreign policy.” CSRTs
have confirmed the status of at least 520 enemy combatants. Any new detainees that might be
transported to Guantanamo Bay will go before a CSRT. The CSRTs are not empowered to
determine whether the enemy combatants are unlawful or lawful, which led two military
commission judges to hold that CSRT determinations are inadequate to form the basis for the
26 Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2793 (2006)(characterizing the Eisentrager decision, 339 U.S. 763,
790(1950), as having rejected the treaty claim “on the merits”). Justice Kennedy’s Boumediene opinion rejected the
view that Eisentrager imposed a strict jurisdictional test based solely on the sovereignty of the territory involved,
finding instead that all of the “practical considerations” considered in the opinion were integral to the ultimate holding.
Boumediene at 2257.
27 See Department of Defense (DOD) Fact Sheet, “Combatant Status Review Tribunals,” available at
http://www.defenselink.mil/news/Jul2004/d20040707factsheet.pdf. CSRT proceedings are modeled on the procedures
of Army Regulation (AR) 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees
(1997), which establishes administrative procedures to determine the status of detainees under the Geneva Conventions
and prescribes their treatment in accordance with international law. It does not include a category for “unlawful” or
“enemy” combatants, who would presumably be covered by the other categories.
28 See DOD Press Release, “Combatant Status Review Tribunal Order Issued” (June 7, 2004), available at
http://www.defenselink.mil/releases/2004/nr20040707-0992.html; Memorandum from the Deputy Secretary of Defense
to the Secretary of the Navy, Order Establishing Combatant Status Review Tribunal, July 7, 2004 (hereinafter “CSRT
Order”), available at http://www.defenselink.mil/news/Jul2004/d20040707review.pdf; Memorandum from Deputy
Secretary of Defense, Implementation of Combatant Status Review Tribunals Procedures for Enemy Combatants
Detained at U.S. Naval Base Guantanamo Bay, Cuba, July 14, 2006 (hereinafter “CSRT Implementing Directive”),
available at http://www.defenselink.mil/news/Aug2006/d20060809CSRTProcedures.pdf.
jurisdiction of military commissions.29 Military commissions must now determine whether a 30
defendant is an unlawful enemy combatant in order to assume jurisdiction.
The tribunals are administrative rather than adversarial, but each detainee has an opportunity to 31
present “reasonably available” evidence and witnesses to a panel of three commissioned officers
to try to demonstrate that the detainee does not meet the criteria to be designated as an “enemy
combatant,” defined as “an individual who was part of or supporting Taliban or al Qaida 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 32
supported hostilities in aid of enemy armed forces.” Each detainee is represented by a military 33
officer (not a member of the Judge Advocate General (“JAG”) Corps) and may elect to 34
participate in the hearing or remain silent. The government’s evidence is presented by the 35
recorder, who is a military officer, preferably a judge advocate.
The CSRTs are not bound by the rules of evidence that would apply in court, and the 36
government’s evidence is presumed to be “genuine and accurate.” The government is required
to present all of its relevant evidence, including evidence that tends to negate the detainee’s 37
designation, to the tribunal. The CSRT is required to assess, “to the extent practicable, whether
any statement derived from or relating to such detainee was obtained as a result of coercion and 38
the probative value, if any, of any such statement.” Unclassified summaries of relevant evidence 39
may be provided to the detainee. The detainee’s personal representative may view classified 40
information and comment on it to the tribunal to aid in its determination but does not act as an
29 See Josh White and Shailagh Murray, Guantanamo Ruling Renews The Debate Over Detainees, WASH. POST, June 6,
2007, at A3.
30 United States v. Khadr, No. 07-001, (U.S.C.M.C.R. September 7, 2007) (finding CSRT designation alone insufficient
to confer jurisdiction on military commission, but holding that the military commission judge has the inherent authority
to determine the status of the accused).
31 Witnesses from within the U.S. Armed Forces are not “reasonably available” if their participation, as determined by
their commanders, would adversely affect combat or support operations. CSRT Implementing Directive, supra note 28,
at encl. 1, para. G(9)(a). All other witnesses, apparently including those from other agencies, are not “reasonably
available” if they decline to attend or cannot be reached, or if security considerations prevents their presence. Id. at
encl. 1, para. G(9)(b). It is unclear who makes the security determination. Non-government witnesses appear at their
own expense. Testimony is under oath and may be provided in writing or by telephone or video.
32 CSRT Order, supra note 28, at 1.
33 CSRT Implementing Directive, supra note 28, at encl. 1, para. B.
34 Id. at encl. 1, para. F.
35 Id at encl. 1, para. C(2). In an affidavit submitted in DTA litigation, the government acknowledged that it has not
utilized the procedures set forth in the CSRT Implementing Directive. See Bismullah v. Gates, 501 F.3d 178, 194-95
(D.C. Cir. 2007) (order on motions) (Rogers, J. Concurring) (citing differences between written procedures and those
described by Rear Admiral James M. McGarrah in the Boumediene case). Rather than having a JAG officer in the rank
of O-3 or above compile government information, the Department of Defense has utilized research, collection, and
coordination teams to gather information to be assessed by a “case writer” who has “received approximately two weeks
of training.” Id. at 94. Thus, the reporter assigned to represent the government’s case may not have had access to all
36 CSRT Implementing Directive, supra note 28, at encl. 1, para. G(7) & (11).
37 Id. at encl. 1, para. G(8).
38 Id. at encl. 10.
39 Id. at encl. 1, para. E(3)(a).
40 Id. at encl. 1, para. H(7).
advocate for the detainee.41 If the tribunal determines that the preponderance of the evidence is
insufficient to support a continued designation as “enemy combatant” and its recommendation is
approved through the chain of command, the detainee will be informed of that decision upon
finalization of transportation arrangements (or earlier, if the task force commander deems it 42
In March 2002, the Pentagon announced plans to create a separate process for periodically 43
reviewing the status of detainees. The process, similar to the CSRT process, affords persons
detained at Guantánamo Bay the opportunity to present to a review board, on at least an annual
basis while hostilities are ongoing, information to show that the detainee is no longer a threat or
that it is in the interest of the United States and its allies to release the prisoner. If new
information with a bearing on the detainee’s classification as an “enemy combatant” comes to 44
light, a new CSRT may be ordered using the same procedures as described above. The
detainee’s State of nationality may be allowed, national security concerns permitting, to submit
information on behalf of its national.
While the Supreme Court clarified in Rasul and Boumediene that the detainees have recourse to
federal courts to challenge their detention, the extent to which they may enforce any rights they
may have under the Geneva Conventions and other law continues to remain unclear. Prior to the
enactment of the Detainee Treatment Act provisions eliminating habeas review, the Justice
Department argued primarily that Rasul v. Bush merely decided the issue of jurisdiction, but that 45
the 1950 Supreme Court decision in Johnson v. Eisentrager remained applicable to limit the
relief to which the detainees may be entitled. While more than one district judge from the D.C. 46
Circuit agreed, others did not, holding for example that detainees have the right to the assistance 47
of an attorney. One judge found that a detainee has the right to be treated as a POW until a 48
“competent tribunal” decides otherwise, but the appellate court reversed. The following sections
summarize the three most important decisions prior to the enactment of the MCA, including the
cases that eventually reached the Supreme Court as Boumediene v. Bush and Hamdan v.
Rumsfeld. The Court of Appeals for the D.C. Circuit had ordered these cases dismissed for lack of
41 Id. at encl. 2, para. D (the personal representative is required to explain to the represented detainee that he or she is
neither the attorney or advocate for the detainee, and that any information provided by the detainee is not confidential).
42 Id. at encl. 1, para. I(9)-(10).
43 See DOD Press Release, “DoD Announces Draft Detainee Review Policy” (March 3, 2004), available at
http://www.defenselink.mil/releases/2004/nr20040303-0403.html; Memorandum from Deputy Secretary of Defense,
Revised Implementation of Administrative Review Procedures for Enemy Combatants Detained at U.S. Navy Base,
Guantanamo Bay, Cuba (July 14, 2006), available at http://www.defenselink.mil/news/Aug2006/
44 CSRT Implementing Directive, supra note 28, at encl. 10 (implementing Detainee Treatment Act provisions).
45 339 U.S. 763 (1950) (holding that the federal courts did not have jurisdiction to hear a petition on behalf of German
citizens who had been convicted by U.S. military commissions in China because the writ of habeas corpus was not
available to “enemy alien[s], who at no relevant time and in no stage of [their] captivity [have] been within [the court’s]
46 Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005); Hamdan v. Rumsfed, 464 F. Supp.2d 9 (D.D.C. 2006).
47 Al Odah v. United States, 346 F. Supp. 2d 1 (D.D.C. 2004).
48 Hamdan v. Rumsfeld, 344 F. Supp. 2d 152 (D.D.C. 2004), rev’d 415 F.3d 33 (D.C. Cir.), rev’d 548 U.S. 557 (2006).
jurisdiction on the basis of the MCA,49 but the Supreme Court reversed in both its Hamdan and
Boumediene decisions, returning the cases to the district court for consideration on the merits.
Also discussed is a Fourth Circuit case involving an alien arrested in the United States and
subsequently held in military custody as an enemy combatant. The petition, brought by Ali al-
Marri, may reach the Supreme Court during its upcoming term. Al-Marri has also petitioned 50
separately for relief from certain conditions of detention.
Seven detainees, all of whom had been captured outside of Afghanistan, sought relief from their
detention at the Guantanamo Bay facility. U.S. District Judge Richard J. Leon agreed with the 52
Administration that Congress, in its Authorization to Use Military Force (AUMF), granted
President Bush the authority to detain foreign enemy combatants outside the United States for the
duration of the war against al Qaeda and the Taliban, and that the courts have virtually no power
to review the conditions under which such prisoners are held. Noting that the prisoners had been 53
captured and detained pursuant to the President’s military order, Judge Leon agreed with the
government that “(1) non-resident aliens detained under [such] circumstances have no rights
under the Constitution; (2) no existing federal law renders their custody unlawful; (3) no legally 54
binding treaty is applicable; and (4) international law is not binding under these circumstances.”
Judge Leon rejected the petitioners’ contention that their arrest outside of Afghanistan and away
from any active battlefield meant that they could not be “enemy combatants” within the meaning 55
of the law of war, finding instead that the AUMF contains no geographical boundaries, and
gives the President virtually unlimited authority to exercise his war power wherever enemy 56
combatants are found. The circumstances behind the off-battlefield captures did, however,
apparently preclude the petitioners from claiming their detentions violate the Geneva 57
Conventions. Other treaties put forth by the petitioners were found to be unavailing because of 58
their non-self-executing nature.
49 Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007).
50 Al-Marri v. Gates, Case No. 05-2259 (D.S.C. filed March 13, 2008).
51 355 F. Supp. 2d 311 (D.D.C. 2005), vacated and dismissed sub nom. Boumediene v. Bush, 476 F.3d 981 (D.C. Cir.
2007), rev’d Boumediene v. Bush, 553 U.S. __, 128 S.Ct. 2229 (2008).
52 Authorization for Use of Military Force (“the AUMF”), P.L. 107-40, 115 Stat. 224 (2001).
53 Although the MO authorized detention as well as trial by military commissions, only fifteen of the detainees were
formally designated as subject to the MO.
54 355 F. Supp. 2d at 314.
55 Id. at 320.
56 Id. at 318. Judge Leon wrote:
The President’s ability to make the decisions necessary to effectively prosecute a Congressionally
authorized armed conflict must be interpreted expansively. Indeed, the Constitution does not
delegate to Congress the power to “conduct” or to “make” war; rather, Congress has been given the
power to “declare” war. This critical distinction lends considerable support to the President’s
authority to make the operational and tactical decisions necessary during an ongoing conflict.
Moreover, there can be no doubt that the President’s power to act at a time of armed conflict is at
its strongest when Congress has specifically authorized the President to act.
57 Id. at 326.
58 Id. at 327. It may be argued that the habeas statute itself (28 U.S.C. § 2241), which authorizes challenges of
detention based on treaty violations, provided a means for private enforcement, at least prior to its amendment by the
The court declined to evaluate whether the conditions of detention were unlawful. Judge Leon
concluded that “[w]hile a state of war does not give the President a ‘blank check,’ and the courts
must have some role when individual liberty is at stake, any role must be limited when, as here,
there is an ongoing armed conflict and the individuals challenging their detention are non-resident 59
aliens.” He dismissed all seven petitions, ruling that “until Congress and the President act
further, there is ... no viable legal theory under international law by which a federal court could
issue a writ.”
On appeal, the Khalid case was consolidated with In re Guantanamo Detainee Cases as
Boumediene v. Bush.
U.S. District Judge Joyce Hens Green interpreted Rasul more broadly, finding that the detainees
do have rights under the U.S. Constitution and international treaties, and thus denied the
government’s motion to dismiss the eleven challenges before the court. Specifically, Judge Green
held that the detainees are entitled to due process of law under the Fifth Amendment, and that the
CSRT procedures do not meet that standard. Interpreting the history of Supreme Court rulings on
the availability of constitutional rights in territories under the control of the American government
(though not part of its sovereign territory), Judge Green concluded that the inquiry turns on the
fundamental nature of the constitutional rights being asserted rather than the citizenship of the
person asserting them. Accepting that the right not to be deprived of liberty without due process
of law is a fundamental constitutional right, the judge applied a balancing test to determine what 61
process is due in light of the government’s significant interest in safeguarding national security.
Judge Green rejected the government’s stance that the CSRTs provided more than sufficient due
process for the detainees. Instead, she identified two categories of defects. She objected to the
CSRTs’ failure to provide the detainees with access to material evidence upon which the tribunal
affirmed their “enemy combatant” status and the failure to permit the assistance of counsel to
compensate for the lack of access. These circumstances, she said, deprived detainees of a
meaningful opportunity to challenge the evidence against them.
Second, in particular cases, the judge found that the CSRTs’ handling of accusations of torture
and the vague and potentially overbroad definition of “enemy combatant” could violate the due
process rights of detainees. Citing detainees’ statements and news reports of abuse, Judge Green
noted that the possibility that evidence was obtained involuntarily from the accused or from other
witnesses, whether by interrogators at Guantanamo or by foreign intelligence officials elsewhere,
could make such evidence unreliable and thus constitutionally inadmissible as a basis on which to
determine whether a detainee is an enemy combatant. Judge Green objected to the definition of
“enemy combatant” because it appears to cover “individuals who never committed a belligerent
act or who never directly supported hostilities against the U.S. or its allies.” She noted that
MCA. See Eisentrager, 339 U.S. at 789 (while noting that the 1929 Geneva Convention did not provide for private
enforcement, considering but rejecting the habeas claim that the treaty vitiated jurisdiction of military commission).
59 Id. at 330 (citations omitted).
60 355 F. Supp. 2d 443 (D.D.C. 2005), vacated and dismissed sub nom. Boumediene v. Bush, 476 F.3d 981 (D.C. Cir.
2007), rev’d Boumediene v. Bush, 553 U.S. __, 128 S.Ct. 2229 (2008).
61 Id. at 465 (citing Hamdi v. Rumsfeld).
government counsel had, in response to a set of hypothetical questions, stated that the following
could be treated as enemy combatants under the AUMF: “[a] little old lady in Switzerland who
writes checks to what she thinks is a charity that helps orphans in Afghanistan but [what] really is
a front to finance al-Qaeda activities, a person who teaches English to the son of an al Qaeda
member, and a journalist who knows the location of Osama Bin Laden but refuses to disclose it to 62
protect her source.” Judge Green stated that the indefinite detention of a person solely because
of his contacts with individuals or organizations tied to terrorism, and not due to any direct
involvement in terrorist activities, would violate due process even if such detention were found to 63
be authorized by the AUMF.
This case was consolidated with the Khalid decision and heard as Boumediene v. Bush by the
D.C. Circuit Court of Appeals, and on appeal, the Supreme Court.
Salim Ahmed Hamdan, who was captured in Afghanistan and is alleged to have worked for
Osama Bin Laden as a bodyguard and driver, brought this challenge to the lawfulness of the 64
Secretary of Defense’s plan to try him for alleged war crimes before a military commission, 65
arguing that the military commission rules and procedures were inconsistent with the UCMJ and 66
that he had the right to be treated as a prisoner of war under the Geneva Conventions. U.S.
District Judge Robertson agreed, finding no inherent authority in the President as Commander-in-
Chief of the Armed Forces to create such tribunals outside of the existing statutory authority, with
which the military commission rules did not comply. He also concluded that the Geneva
Conventions apply to the whole of the conflict in Afghanistan, including under their protections 67
all persons detained in connection with the hostilities there, and that Hamdan was thus entitled
to be treated as a prisoner of war until his status was determined to be otherwise by a competent
tribunal, in accordance with article 5 of the Third Geneva Convention (prisoners of war).
The D.C. Circuit Court of Appeals reversed, ruling that the Geneva Conventions are not judicially
enforceable. Judge Williams wrote a concurring opinion, construing Common Article 3 to apply 68
to any conflict with a non-state actor, without regard to the geographical confinement of such a
conflict within the borders of a signatory state. The Circuit Court interpreted the UCMJ language
to mean that military commission rules have only to be consistent with those articles of the UCMJ
that refer specifically to military commissions, and therefore need not be uniform with the rules
that apply to courts-martial. After the appellate court decision was handed down, Congress passed 69
the Detainee Treatment Act of 2005 (DTA), which revoked federal court jurisdiction to hear
62 Id. at 475 (internal citations omitted).
63 Id. at 476.
64 344 F. Supp. 2d 152 (D.D.C. 2004), 415 F.3d 33 (D.C. Cir. 2005), rev’d 548 U.S. 557 (2006).
65 10 U.S.C. §§ 801 et seq.
66 There are four Conventions, the most relevant of which is The Geneva Convention Relative to the Treatment of
Prisoners of War, August 12, 1949, 6 U.S.T. 3317 (hereinafter “GPW”).
67 344 F. Supp. 2d at 161.
68 GPW art. 3. For a discussion of Common Article 3, see CRS Report RL31367, Treatment of “Battlefield Detainees”
in the War on Terrorism, by Jennifer K. Elsea.
69 P.L. 109-148, §1005(e)(1) provides that “no court shall have jurisdiction to hear or consider an application for habeas
corpus filed by an alien detained at Guantanamo Bay.” The provision was not yet law when the appellate court decided
against the petitioner, Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005), rev’d 548 U.S. 557 (2006). At issue was
habeas corpus petitions and other causes of action brought by Guantanamo detainees. (The
provisions of the DTA are discussed in greater detail infra.) The Supreme Court nevertheless
granted review and reversed.
Before reaching the merits of the case, the Supreme Court declined to accept the government’s
argument that Congress, by passing the DTA, had stripped the Court of its jurisdiction to review
habeas corpus challenges by or on behalf of Guantanamo detainees whose petitions had already 70
been filed. The Court also declined to dismiss the appeal as urged by the government on the
basis that federal courts should abstain from intervening in cases before military tribunals that 71
have not been finally decided, noting the dissimilarities between military commission trials and 72
ordinary courts-martial of service members pursuant to procedures established by Congress.
The government’s argument that the petitioner had no rights conferred by the Geneva
Conventions that could be adjudicated in federal court likewise did not persuade the Court to
dismiss the case. Regardless of whether the Geneva Conventions provide rights enforceable in
Article III courts, the Court found that Congress, by incorporating the “law of war” into UCMJ 73
article 21, brought the Geneva Conventions within the scope of law to be applied by courts.
Justice Scalia, joined by Justices Thomas and Alito, dissented, arguing that the DTA should be
interpreted to preclude the Court’s review.
With respect to the authority to create the military commissions, the Court held that any power to
create them must flow from the Constitution and must be among those “powers granted jointly to 74
the President and Congress in time of war.” It disagreed with the government’s position that
Congress had authorized the commissions either when it passed the Authorization to Use Military
whether this provision applies to pending cases. The Court found that the provision did not apply to Hamdan’s petition,
because the case did not fall under either of the categories of cases over which the DTA had created appellate review in
the D.C. Circuit. The Court did not resolve whether the DTA affects cases that fall under the DTA’s provisions
regarding final review of Combatant Status Review Tribunals, for which habeas review was eliminated as to pending
cases. Hamdan, 126 S.Ct. at 2769, and n.14.
70 Id. at 2763-64. To resolve the question, the majority employed canons of statutory interpretation supplemented by
legislative history, avoiding the question of whether the withdrawal of the Court’s jurisdiction would constitute a
suspension of the Writ of Habeas Corpus, or whether it would amount to impermissible “court-stripping.” Justice
Scalia, joined by Justices Alito and Thomas in his dissent, interpreted the DTA as a revocation of jurisdiction.
71 Id. at 2769-70. The court below had also rejected this argument, 413 F.3d 33, 36 (D.C. Cir. 2005).
72 See Hamdan, 126 S.Ct. at 2771 (stating that the bodies established by the Department of Defense to review the
decisions of military commissions “clearly lack the structural insulation from military influence that characterizes the
Court of Appeals for the Armed Forces....”).
73 10 U.S.C. § 821 (“The provisions of [the UCMJ] conferring jurisdiction upon courts-martial do not deprive military
commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses
that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals.”)
74 Hamdan, 126 S.Ct. at 2773 (citing Congress’s powers to “declare War ... and make Rules concerning Captures on
Land and Water,” Art. I, §8, cl. 11, to “raise and support Armies,” Id., cl. 12, to “define and punish ... Offences against
the Law of Nations,” Id., cl. 10, and “To make Rules for the Government and Regulation of the land and naval Forces,”
Id., cl. 14.).
Force (AUMF)75 or the DTA. Although the Court assumed that the AUMF activated the
President’s war powers, it did not view the AUMF as expanding the President’s powers beyond
the authorization set forth in the UCMJ. The Court also noted that the DTA, while recognizing the
existence of military commissions, does not specifically authorize them. At most, these statutes
“acknowledge a general Presidential authority to convene military commissions in circumstances 76
where justified under the ‘Constitution and laws,’ including the law of war.”
The habeas corpus statute permits those detained under U.S. authority to challenge their 77
detention on the basis that it violates any statute, the Constitution, or a treaty. The D.C. Circuit 78
nevertheless held that the Geneva Conventions are never enforceable in federal courts. The
Supreme Court disagreed, finding the Conventions were applicable as incorporated by UCMJ
Article 21, because “compliance with the law of war is the condition upon which the authority set 79
forth in Article 21 is granted.” In response to the alternative holding by the court below that
Hamdan, as a putative member of al Qaeda, was not entitled to any of the protections accorded by
the Geneva Conventions, the Court concluded that Common Article 3 of the Geneva Conventions
applies even to members of al Qaeda, according to them a minimum baseline of protections,
including protection from the “passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court, affording all the judicial 80
guarantees which are recognized as indispensable by civilized peoples.”
While recognizing that Common Article 3 “obviously tolerates a great degree of flexibility in
trying individuals captured during armed conflict,” and that “its requirements are general ones,
crafted to accommodate a wide variety of legal systems,” the Court found that the military
commissions under M.C.O. No. 1 did not meet these criteria. In particular, the military
commissions did not qualify as “regularly constituted” because they deviated too far, in the
Court’s view, from the rules that apply to courts-martial, without a satisfactory explanation of the 81
need for such deviation. Justice Alito, joined by Justices Scalia and Thomas, dissented, arguing
that the Court is bound to defer to the President’s plausible interpretation of the treaty language.
75 P.L. 107-40, 115 Stat. 224 (2001).
76 Hamdan, 126 S.Ct. at 2775.
77 28 U.S.C. § 2241(c)(3)(permitting petitions by prisoners “in custody in violation of the Constitution or laws or
treaties of the United States”).
78 See 415 F.3d at 39 (citing Johnson v. Eisentrager, 339 U.S. 763, 789, n. 14(1950)).
79 Hamdan, 126 S.Ct. at 2794.
80 GPW art. 3 § 1(d). The identical provision is included in each of the four Geneva Conventions and applies to any
“conflict not of an international character.” The majority declined to accept the President’s interpretation of Common
Article 3 as inapplicable to the conflict with al Qaeda and interpreted the phrase “in contradistinction to a conflict
between nations,” which the Geneva Conventions designate a “conflict of international character”. Hamdan, 126 S.Ct.
81 Id. at 2796-97 (plurality opinion); Id. (Kennedy, J., concurring) at 2804. Justice Stevens, joined by Justices Ginsburg,
Breyer, and Souter, further based their conclusion on the basis that M.C.O. No. 1 did not meet all criteria of art. 75 of
Protocol I to the Geneva Conventions of 1949, adopted in 1977 (Protocol I). While the United States is not party to
Protocol I, the plurality noted that many authorities regard it as customary international law.
While the Hamdan Court declared the military commissions as constituted under the President’s
Military Order to be “illegal,” it left open the possibility that changes to the military commission
rules could cure any defects by bringing them within the law of war and conformity with the
UCMJ, or by asking Congress to authorize or craft rules tailored to the “Global War on
Terrorism” (GWOT). The Court did not resolve the extent to which the detainees, as aliens held
outside of U.S. territory, have constitutional rights enforceable in federal court.
The decision may affect the treatment of detainees outside of their criminal trials; for example, in
interrogations for intelligence purposes. Common Article 3 of the Geneva Conventions mandates
that all persons taking no active part in hostilities, including those who have laid down their arms
or been incapacitated by capture or injury, are to be treated humanely and protected from
“violence to life and person,” torture, and “outrages upon personal dignity, in particular,
humiliating and degrading treatment.” Insofar as these protections are incorporated in the UCMJ
and other laws, it would seem the Court is ready to interpret and adjudicate them, to the extent it
retains jurisdiction to do so. It is not clear how the Court views the scope of the GWOT, however,
because its decisions on the merits have been limited to cases arising out of hostilities in
The opinion reaffirms the holding in Rasul v. Bush82 that the AUMF does not provide the
President a “blank check,” and, by finding in favor of a noncitizen held overseas, seems to have
expanded the Hamdi comment that
[w]hatever power the United States Constitution envisions for the Executive in its exchanges
with other nations or with enemy organizations in times of conflict, it most assuredly 83
envisions a role for all three branches when individual liberties are at stake.
The dissenting views also relied in good measure on actions taken by Congress, seemingly
repudiating the view expressed earlier by the Executive that any efforts by Congress to legislate
with respect to persons captured, detained, and possibly tried in connection with the GWOT 84
would be an unconstitutional intrusion into powers held exclusively by the President. Expressly
or implicitly, all eight participating Justices applied the framework set forth by Justice Jackson in 85
his famous concurrence in the Steel Seizures case, which accords greater deference to the
President in cases involving national security where he acts with express congressional authority
than when he acts alone. The differing views among the Justices seem to have been a function of
their interpretation of the AUMF and other acts of Congress as condoning or limiting executive 86
actions. The Military Commissions Act of 2006 likely resolves many issues regarding the scope
of authority the President may exercise; however, the constitutionality of the various measures
remains to be resolved, assuming the courts retain jurisdiction to resolve them.
82 542 U.S. 466 (2004).
83 542 U.S. 507, 535 (2004).
84 See, e.g., Oversight of the Department of Justice: Hearing Before the Senate Judiciary Committee, 107th Cong.
(2002) (testimony of Attorney General John Ashcroft) (arguing that a statute that could be read to interfere with the
executive power to detain enemy combatants must be interpreted otherwise to withstand constitutional scrutiny).
85 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
86 For information about relevant legislation, see CRS Report RL31600, The Department of Defense Rules for Military
Commissions: Analysis of Procedural Rules and Comparison with Proposed Legislation and the Uniform Code of
Military Justice, by Jennifer K. Elsea.
The case of Ali Saleh Kahlah al-Marri differs significantly from cases discussed above in that the
petitioner, a lawful alien resident, was arrested and is imprisoned within the United States. Al-
Marri, a Qatari student, was arrested in December 2001 in Peoria, Illinois, and transported to New
York City, where he was held as a material witness for the grand jury investigating the 9/11
attacks. He was later charged with financial fraud and making false statements and transferred
back to Peoria. Before his case went to trial, however, he was declared an “enemy combatant”
and transferred to military custody in South Carolina. Al-Marri’s counsel filed a petition for
habeas corpus challenging al-Marri’s designation and detention as an “enemy combatant.” The
petition was eventually dismissed for lack of jurisdiction by the U.S. Court of Appeals for the 87
Seventh Circuit, and a new petition was filed in the Fourth Circuit. In March 2005, Judge Floyd
agreed with the government that the detention was authorized by the AUMF and transferred the
case to a federal magistrate to examine the factual allegations supporting the government’s 88
detention of the petitioner as an enemy combatant. The government provided a declaration
asserting that al-Marri is closely associated with al Qaeda and had been sent to the United States
prior to September 11, 2001 to serve as a “sleeper agent” for al Qaeda in order to “facilitate
terrorist activities and explore disrupting this country’s financial system through computer 89
hacking.” The magistrate judge recommended the dismissal of the petition on the basis of
information the government provided, which al-Marri did not attempt to rebut and which the
magistrate judge concluded was sufficient for due process purposes in line with the Hamdi 90
decision. The district judge adopted the magistrate judge’s report and recommendations in full,
rejecting the petitioner’s argument that his capture away from a foreign battlefield precluded his 91
designation as an “enemy combatant.”
Al-Marri appealed, and the government moved to dismiss on the basis that the MCA strips the
court of jurisdiction. The petitioner asserted that Congress did not intend to deprive him of his
right to habeas or that, alternatively, the MCA is unconstitutional. The majority avoided the
constitutional question by finding that al-Marri does not meet the statutory definition as an alien
who “has been determined by the United States to have been properly detained as an enemy 92
combatant or is awaiting such determination.”
87 Al-Marri v. Rumsfeld, 360 F.3d 707 (7th Cir. 2004), cert. denied 543 U.S. 809 (2004).
88 Al-Marri v. Hanft, 378 F. Supp.2d 673 (D. S.C. 2005) (order denying summary judgment).
89 Al-Marri v. Pucciarelli, slip op. at 4 (4th Cir. 2008)(Motz, J., concurring)(citing declaration Jeffrey N. Rapp, Director
of the Joint Intelligence Task Force for Combating Terrorism).
90 Al-Marri v. Wright, 443 F. Supp. 2d 774 (D. S.C. 2006) (citing Hamdi v. Rumsfeld, 542 U.S. 507 (2004)). With
respect to the “due process hearing” required to establish that an enemy combatant is properly held, the Hamdi plurality
enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the
Executive at a time of ongoing military conflict. Hearsay, for example, may need to be accepted as
the most reliable available evidence from the Government in such a proceeding. Likewise, the
Constitution would not be offended by a presumption in favor of the Government’s evidence, so
long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided.
Thus, once the Government puts forth credible evidence that the habeas petitioner meets the
enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more
persuasive evidence that he falls outside the criteria.
91 Id. at 778-80.
92 The court held that the MCA requires a two-step process for determining whether persons are properly detained as
enemy combatants, but that the President’s determination of the petitioner’s “enemy combatant” status fulfilled only
Turning to the merits, the majority found that al-Marri does not fall within the legal category of
“enemy combatant” within the meaning of Hamdi, and that the government could continue to
hold him only if it charges him with a crime, commences deportation proceedings, obtains a
material witness warrant in connection with grand jury proceedings, or detains him for a limited 93
time pursuant to the Patriot Act. In so holding, the majority rejected the government’s
contention that the AUMF authorizes the President to order the military to seize and detain
persons within the United States under the facts asserted by the government, or that, alternatively,
the President has inherent constitutional authority to order the detention.
The government cited the Hamdi decision and the Fourth Circuit’s decision in Padilla v. Hanft94
to support its contention that al-Marri is an enemy combatant within the meaning of the AUMF
and the law of war. The court, however, interpreted Hamdi as confirming only that “the AUMF is
explicit congressional authorization for the detention of individuals in the narrow category ... [of]
individuals who were ‘part of or supporting forces hostile to the United States or coalition 95
partners in Afghanistan and who engaged in an armed conflict against the United States there.’”
Likewise, Padilla, although captured in the United States, could be detained pursuant to the
AUMF only because he had been, prior to returning to the United States, “‘armed and present in a
combat zone’ in Afghanistan as part of Taliban forces during the conflict there with the United 96
States.” The court explained that the two cases cited by the government, Hamdi and Padilla, 97
involved situations similar to the World War II case Ex parte Quirin, in which the Supreme
Court agreed that eight German saboteurs could be tried by military commission because they 98
were enemy belligerents within the meaning of the law of war. In contrast, al-Marri’s situation 99
was to be likened to Ex parte Milligan, the Civil War case in which the Supreme Court held that
a citizen of Indiana accused of conspiring to commit hostile acts against the Union was 100
nevertheless a civilian who was not amenable to military jurisdiction. The court concluded that
enemy combatant status rests, in accordance with the law of war, on affiliation with the military
arm of an enemy government in an international armed conflict.
Judge Hudson dissented, arguing that the broad language of the AUMF, which authorized the
President “to use all necessary and appropriate force against those nations, organizations, or
persons he determines” were involved in the terrorist attacks of September 11, 2001, “would
the first step. The court next found that Al-Marri could not be said to be awaiting such a determination within the
meaning of the MCA, inasmuch as the government was arguing on the merits that the presidential determination had
provided all of the process that was due, and the government had offered the possibility of bringing Al-Marri before a
CSRT only as an alternative course of action in the event the petition were dismissed. Further, the majority looked to
the legislative history of the MCA, from which it divined that Congress did not intend to replace habeas review with
the truncated review available under the amended DTA in the case of aliens within the United States, who it understood
to have a constitutional as opposed to merely statutory entitlement to seek habeas review. Al-Marri v. Wright , 487 th
F.3d 160, 172 (4 Cir. 2007), vacated sub nom. Al-Marri v. Pucciarelli, __F.3d __ (2008)(per curiam).
93 Id. at 196.
94 423 F.3d 386 (4th Cir. 2005). The government is no longer holding Jose Padilla as an enemy combatant, having
turned him over to civil authorities for trial on charges associated with terrorism.
95 Al-Marri, 487 F.3d at 180 (citing Hamdi at 516-17)(emphasis in original).
96 Id. (citing Padilla, 423 F.3d at 390-91).
97 317 U.S. 1 (1942).
98 Al-Marri, 487 F.3d at 179 (citing Quirin, 317 U.S. at 37-38; Hamdi, 542 U.S. at 519; Padilla, 423 F.3d at 391).
99 71 U.S. (4 Wall.) 2 (1866).
100 Al-Marri at 189.
certainly seem to embrace surreptitious al Qaeda agents operating within the continental United 101
States.” He would have found no meaningful distinction between the present case and Padilla.
The government petitioned for and was granted a rehearing en banc.102 On rehearing, the
narrowly divided Fourth Circuit full bench rejected the earlier panel’s decision in favor of the
government’s position that al-Marri fits the legal definition of “enemy combatant,” but also
reversed the district court’s decision that al-Marri was not entitled to present any more evidence
to refute the government’s case against him. Four of the judges on the panel would have retained
the earlier decision, arguing that it was not within the court’s power to expand the definition of
“enemy combatant” beyond the law-of-war principles at the heart of the Supreme Court’s Hamdi 103
decision. However, these four judges joined in Judge Traxler’s opinion to remand for
evidentiary proceedings in order “at least [to] place the burden on the Government to make an
initial showing that normal due process protections are unduly burdensome and that the Rapp
declaration is “the most reliable available evidence,” supporting the Government’s allegations 104
before it may order al-Marri’s military detention.”
Judge Traxler, whose opinion is controlling for the case although not joined in full by any other
panel member, agreed with the four dissenting judges that the AUMF “grants the President the
power to detain enemy combatants in the war against al Qaeda, including belligerents who enter
our country for the purpose of committing hostile and war-like acts such as those carried out by 105
the al Qaeda operatives on 9/11.” Accordingly, he would define “enemy combatant” in the
GWOT to include persons who “associate themselves with al Qaeda” and travel to the United
States “for the avowed purpose of further prosecuting that war on American soil, ... even though
the government cannot establish that the combatant also ‘took up arms on behalf of that enemy 106
and against our country in a foreign combat zone of that war.’” Under this definition, American
101 Id. at 196 (Hudson, J., dissenting).
102 Al-Marri v. Pucciarelli, __F.3d __, 2008 WL 2736787 (4th Cir. 2008)(per curiam). The intervening Supreme Court
decision in Boumediene led the court to reject the government’s contention that the MCA had divested the court of
103 Id. at *13 (Motz, J. concurring)(citing Hamdi, 542 U.S. at 518). Judge Motz, joined by three other judges,
characterized leading precedents as sharing two characteristics:
(1) they look to law-of-war principles to determine who fits within the “legal category” of enemy combatant; and
(2) following the law of war, they rest enemy combatant status on affiliation with the military arm of an enemy
Under their interpretation of the law of war, there is no combatant status in non-international armed conflict, where
detention is controlled by domestic law. For a discussion of U.S. practice with respect to the wartime detention of
suspected enemies, whether civilians or combatants, see CRS Report RL31724, Detention of American Citizens as
Enemy Combatants, by Jennifer K. Elsea.
104 Al-Marri, at *32.
105 Id. at *32 (Traxler, J., concurring).
106 Id. at *37. Judge Traxler further suggested that the types of activities that would distinguish a combatant from a
civilian enemy would include violent activities. See id. At *39 (describing the allegations that al-Marri “directly allied
himself with al Qaeda abroad, volunteered for assignments (including a martyr mission), received training and funding
from al Qaeda abroad, was dispatched by al Qaeda to the United States as an al Qaeda operative with orders to serve as
a sleeper agent, and was tasked with facilitating and ultimately committing terrorist attacks against the United States
within this country”). The dissenting judges suggested similar definitions for determining who may be treated as an
“enemy combatant.” See id. at *61 (Williams, J., concurring in part and dissenting in part)(defining enemy combatant
covered by the AUMF as “an individual who meets two criteria: (1) he attempts or engages in belligerent acts against
the United States, either domestically or in a foreign combat zone; (2) on behalf of an enemy force”); id. at *99
(Wilkinson, J., concurring in part and dissenting in part)(proposing two-part test in which “an ‘enemy’ is any individual
who is (1) a member of (2) an organization or nation against whom Congress has declared war or authorized the use of
citizens arrested in the United States could also be treated as enemy combatants under similar 107
allegations, at least if they had traveled abroad and returned for the purpose of engaging in
activity related to terrorism on behalf of al Qaeda.
However, Judge Traxler did not agree that al-Marri had been afforded due process by the district
court to challenge the factual basis for his designation as an enemy combatant. While recognizing
that the Hamdi plurality had suggested that hearsay evidence might be adequate to satisfy due
process requirements for proving enemy combatant status, Judge Traxler did not agree that such
relaxed evidentiary standards are necessarily appropriate when dealing with a person arrested in
the United States:
Because al-Marri was seized and detained in this country,... he is entitled to habeas review by
a civilian judicial court and to the due process protections granted by our Constitution,
interpreted and applied in the context of the facts, interests, and burdens at hand. To
determine what constitutional process al-Marri is due, the court must weigh the competing
interests, and the burden-shifting scheme and relaxed evidentiary standards discussed in
Hamdi serve as important guides in this endeavor. Hamdi does not, however, provide a
cookie-cutter procedure appropriate for every alleged enemy-combatant, regardless of the
circumstances of the alleged combatant’s seizure or the actual burdens the government might 108
face in defending the habeas petition in the normal way.
Al-Marri’s case will return to the district court for evidentiary hearings, unless the Supreme Court
decides to grant certiorari or, perhaps, if the government ceases to detain him as an “enemy
The Detainee Treatment Act of 2005 (DTA), passed after the Court’s decision in Rasul, requires 109
uniform standards for interrogation of persons in the custody of the Department of Defense,
and expressly bans cruel, inhuman, or degrading treatment of detainees in the custody of any U.S. 110
agency. The prohibited treatment is defined as that which would violate the Fifth, Eighth, and
Fourteenth Amendments to the U.S. Constitution, as the Senate has interpreted “cruel, inhuman,
military force” and a combatant is “ a person who knowingly plans or engages in conduct that harms or aims to harm
persons or property for the purpose of furthering the military goals of an enemy nation or organization”).
107 See id. at *53 (Gregory, J., concurring).
108 Id. at *47. Judge Traxler formulated a general rule under which such enemy combatants “would be entitled to the
normal due process protections available to all within this country, including an opportunity to confront and question
witnesses against him[, unless] the government can demonstrate to the satisfaction of the district court that this is
impractical, outweighed by national security interests, or otherwise unduly burdensome because of the nature of the
capture and the potential burdens imposed on the government to produce non-hearsay evidence and accede to discovery
requests, [in which case] alternatives should be considered and employed.” Id. at *49.
109 Section 1002 of P.L. 109-148 requires DOD to follow the Army Field Manual for intelligence interrogation. See
DEPARTMENT OF THE ARMY FIELD MANUAL 34-52, INTELLIGENCE INTERROGATION (1992), available at
http://www4.army.mil/ocpa/reports/ArmyIGDetaineeAbuse/FM34-52IntelInterrogation.pdf (September 1, 2004). For
an analysis of the approved interrogation procedures, see CRS Report RL32567, Lawfulness of Interrogation
Techniques under the Geneva Conventions, by Jennifer K. Elsea.
110 Section 1003 of P.L. 109-148. See CRS Report RL33655, Interrogation of Detainees: Overview of the McCain
Amendment, by Michael John Garcia.
or degrading” treatment banned by the U.N. Convention Against Torture.111 The provision does
not create a cause of action for detainees to ask a court for relief based on inconsistent treatment,
and it divests the courts of jurisdiction to hear challenges by those detained at Guantanamo Bay 112
based on their treatment or living conditions. It also provides a legal defense to U.S. officers
and agents who may be sued or prosecuted based on their treatment or interrogation of 113
detainees. This language appears to have been added as a compromise because the
Administration reportedly sought to have the Central Intelligence Agency excepted from the
prohibition on cruel, inhuman and degrading treatment on the grounds that the President needs 114
“maximum flexibility in dealing with the global war on terrorism.”
The DTA also includes a modified version of the “Graham-Levin Amendment,”115 which requires
the Defense Department to submit to the Armed Services and Judiciary Committees the 116
procedural rules for determining detainees’ status. The amendment neither authorizes nor
requires a formal status determination, but it does require that certain congressional committees
be notified 30 days prior to the implementation of any changes to the rules. As initially adopted
by the Senate, the amendment would have required these procedural rules to preclude evidence
determined by the board or tribunal to have been obtained by undue coercion, however, the
conferees modified the language so that the tribunal or board must assess, “to the extent
practicable ... whether any statement derived from or relating to such detainee was obtained as a
result of coercion” and “the probative value, if any, of any such statement.”
The Graham-Levin Amendment also eliminated the federal courts’ statutory jurisdiction over
habeas claims by aliens detained at Guantanamo Bay, but provides for limited appeals of status
determinations made pursuant to the DOD procedures for Combatant Status Review Tribunals
(CSRTs). In June 2008, the Supreme Court invalidated the provision that eliminated habeas 117
corpus jurisdiction, but stated that the DTA appellate process “remains intact,” although it
appears that the process is not an adequate substitute for habeas review. However, it no longer
constitutes the sole avenue by which a detainee may seek judicial review of his detention, as a
detainee may also seek habeas review by a federal district court. It appears that courts will not
require detainees to exhaust their options under the DTA appeals process prior to seeking habeas
review, at least in cases currently pending.
111 Section 1003(d) of P.L. 109-148. For more information, see CRS Report RL32438, U.N. Convention Against
Torture (CAT): Overview and Application to Interrogation Techniques, by Michael John Garcia.
112 Section 1005 of P.L. 109-148 (denying aliens in military custody privilege to file writ of habeas corpus or “any
other action against the United States or its agents relating to any aspect of the[ir] detention. . .”).
113 Section 1004 of P.L. 109-148 provides a defense in litigation related to “specific operational practices,” involving
detention and interrogation where the defendant:
did not know that the practices were unlawful and a person of ordinary sense and understanding
would not know the practices were unlawful. Good faith reliance on advice of counsel should be an
important factor, among others, to consider in assessing whether a person of ordinary sense and
understanding would have known the practices to be unlawful.
114 See Eric Schmitt, Exception Sought in Detainee Abuse Ban, N.Y. TIMES, October 25, 2005, at 16.
115 151 CONG. REC. S12667 (daily ed. November 10, 2005)(introduced by Sen. Graham, passed by roll call vote, 49 -
42), as amended by S.Amdt. 2524, 151 CONG. REC. S12771 (daily ed. November 14, 2005).
116 The amendment refers to both the Combatant Status Review Tribunals (“CSRTs”), the initial administrative
procedure to confirm the detainees’ status as enemy combatants, and the Administrative Review Boards, which were
established to provide annual review that the detainees’ continued detention is warranted.
117 Boumediene v. Bush, 553 U.S. __, 128 S.Ct. 2229, 2275 (2008).
Under the appellate process prescribed by the DTA, the D.C. Circuit Court of Appeals has
exclusive jurisdiction to hear appeals of any status determination made by a “Designated Civilian
Official,” but the review is limited to a consideration of whether the determination was made
consistently with applicable DOD procedures, including whether it is supported by the
preponderance of the evidence, but allowing a rebuttable presumption in favor of the government.
The procedural rule regarding the use of evidence obtained through undue coercion applies
prospectively only, so that detainees who have already been determined by CSRTs to be enemy
combatants may not base an appeal on the failure to comply with that procedure. Detainees may
also appeal status determinations on the basis that, “to the extent the Constitution and laws of the
United States are applicable, whether the use of such standards and procedures to make the
determination is consistent with the Constitution and laws of the United States.” Jurisdiction was
to cease if the detainee were transferred from DOD custody. (Currently, jurisdiction is cut off if
the detainee is transferred from U.S. custody.)
The DTA also provides for an appeal to the Court of Appeals for the District of Columbia Circuit
of final sentences rendered by a military commission. As initially enacted, the DTA required the
court to review capital cases or cases in which the alien was sentenced to death or to a term of
imprisonment for 10 years or more, and made review over convictions with lesser penalties
discretionary. The scope of review was limited to considering whether the decision applied the
correct standards consistent with Military Commission Order No. 1 (implementing the President’s
Military Order) and whether those standards were consistent with the Constitution and laws of the
United States, to the extent applicable.
After the Court’s decision in Hamdan, the Bush Administration proposed legislation to 118
Congress, a version of which was enacted on October 17, 2006. The Military Commissions Act
of 2006 (MCA) authorized the trial of certain detainees by military commission and prescribed 119
detailed rules to govern their procedures. The MCA also amended the DTA provisions
regarding appellate review and habeas corpus jurisdiction.
The MCA expanded the DTA to make its review provisions the exclusive remedy for all aliens
detained as enemy combatants anywhere in the world, rather than only those housed at
Guantanamo Bay, Cuba. It does not, however, require that all detainees undergo a CSRT or a
118 Senator Frist introduced the Administration’s proposal as the “Bringing Terrorists to Justice Act of 2006,” S. 3861.
The Senate Armed Services Committee reported favorably a bill called the “Military Commissions Act of 2006” (S.
3901), which was in many respects similar to the Administration’s proposal, but varied with respect to jurisdiction and
some rules of evidence. The House Armed Services Committee approved H.R. 6054, also called the “Military
Commissions Act of 2006,” which closely tracked the Administration’s proposal. After reaching an agreement with the
White House with respect to several provisions in S. 3901, Senator McCain introduced S. 3930, again entitled the
“Military Commissions Act of 2006.” Representative Hunter subsequently introduced a modified version of H.R. 6054
as H.R. 6166, which the House of Representatives passed on September 28, 2006. A manager’s amendment to S. 3930,
substantially identical to the bill passed by the House, was passed by the Senate the following day.
119 P.L. 109-366. For a further description of the procedures associated with these military commissions, see CRS
Report RL33688, The Military Commissions Act of 2006: Analysis of Procedural Rules and Comparison with Previous
DOD Rules and the Uniform Code of Military Justice, by Jennifer K. Elsea.
military tribunal in order to continue to be confined. Thus, any aliens detained outside of
Guantanamo Bay might be effectively denied access to U.S. courts, except perhaps by means of
Appeals from the final decisions of military commissions continue to go to the United States 120
Court of Appeals for the District of Columbia Circuit, but are routed through a new appellate
body, the Court of Military Commission Review (CMCR). CSRT determinations continue to be
appealable directly to the D.C. Circuit. Review of decisions of a military commission may only 121
concern matters of law, not fact. Appeals may be based on inconsistencies with the procedures
set forth by the MCA, or, to the extent applicable, the Constitution or laws of the United States.
The MCA § 7 revoked U.S. courts’ jurisdiction to hear habeas corpus petitions by all aliens in
U.S. custody as enemy combatants, including lawful enemy combatants, regardless of the place
of custody. It replaced 28 U.S.C. § 2241(e), the habeas provision added by the DTA, with
language providing that
(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a
writ of habeas corpus filed by or on behalf of an alien detained by the United States who has
been determined by the United States to have been properly detained as an enemy combatant
or is awaiting such determination.
(2) Except as provided in paragraphs (2) [review of CSRT determinations] and (3) [review of
final decisions of military commissions] of section 1005(e) of the Detainee Treatment Act of
2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or
consider any other action against the United States or its agents relating to any aspect of the
detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was
detained by the United States and has been determined by the United States to have been 122
properly detained as an enemy combatant or is awaiting such determination.
This amendment took effect on the date of its enactment, and applied to “all cases, without
exception, pending on or after the date of [enactment] which relate to any aspect of the detention,
transfer, treatment, trial, or conditions of detention of an alien detained by the United States since
September 11, 2001.” In Boumediene v. Bush, discussed infra, the Supreme Court held that MCA
§ 7 constituted an unconstitutional suspension of the writ of habeas corpus, and authorized
Guantanamo detainees to petition federal district courts for habeas review of CSRT
determinations of their enemy combatant status.
Under the DTA appeals provision, there is no apparent limit to the amount of time a detainee
could spend awaiting a determination as to combatant status. Aliens who continue to be detained
despite having been determined not to be enemy combatants are not permitted to challenge their
continued detention or their treatment, nor are they able to protest their transfer to another
country, for example, on the basis that they fear torture or persecution. However, these matters
may be raised in habeas petition. The extent of relief the courts may be able to grant remains to
be addressed by the courts.
120 MCA § 5.
121 10 U.S.C. § 950g(b).
122 MCA § 7.
A continuing source of dispute in the detention and treatment of detainees is the application of the
Geneva Convention. As noted previously, the habeas corpus statute has traditionally provided for,
among other things, challenges to allegedly unlawful detentions based on rights found in 123
treaties. Thus, for instance, Common Article 3 of the 1949 Geneva Conventions, which
prohibits the “passing of sentences and the carrying out of executions without previous judgment
pronounced by a regularly constituted court, affording all the judicial guarantees which are
recognized as indispensable by civilized peoples,” has been used as a basis for challenging the 124
confinement of detainees.
Section 5 of the MCA, however, specifically precludes the application of the Geneva Conventions 125
to habeas or other civil proceedings. Further, the MCA provides that the Geneva Conventions
may not be claimed as a source of rights by an alien who is subject to military commission 126
proceedings. Rather, Congress deems that the military commission structure established by the
act complies with the requirement under Common Article 3 of the Geneva Convention that trials 127
be by a regularly constituted court.
In addition, the act provides that the President shall have the authority to interpret the meaning of 128
the Geneva Conventions. The intended effect of this provision is unclear. While the President
generally has a role in the negotiation, implementation, and domestic enforcement of treaty 129
obligations, this power does not generally extend to “interpreting” treaty obligations, a role 130
more traditionally associated with courts. In general, Congress is prohibited from exercising 131132
powers allocated to another branch of government. In United States v. Klein, the Congress
123 28 U.S.C. § 2241.
124 GPW art. 3 § 1(d). See Hamdan, 126 S.Ct. at 2796-2797 (noting the application of this provision of the Geneva
Conventions to detainees through the UCMJ Article 21).
125 MCA § 5(a) provides that “No person may invoke the Geneva Conventions or any protocols thereto in any habeas
corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member
of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States
or its States or territories.”
126 MCA § 3 (10 U.S.C. § 948c) provides that “No alien unlawful enemy combatant subject to trial by military
commission under this chapter may invoke the Geneva Conventions as a source of rights.”
127 MCA § 3 (10 U.S.C. § 948b(f), as amended) provides that a military commission is a “regularly constituted court,
affording all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’ for
purposes of common Article 3 of the Geneva Conventions.” While this language could be construed as directing a court
to find that the MCA does not conflict with the Geneva Conventions, a better reading would appear to be that, to the
extent that there is a conflict between the MCA and the Geneva Conventions, that the MCA should be given
precedence. See generally Robertson v. Seattle Audubon Soc’y, 503 U.S. 429 (1992).
128 MCA § 6(a)(3)(A) provides that “the President has the authority for the United States to interpret the meaning and
application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations
of treaty obligations which are not grave breaches of the Geneva Conventions.”
129 See, e.g., id. (President is given power to promulgate higher standards and administrative regulations for violations
of treaty obligations).
130 See, e.g., MCA § 6(a)(3)(B)(“No foreign or international source of law shall supply a basis for a rule of decision in
the courts of the United States in interpreting the prohibitions enumerated in subsection (d) of such section 2441.”).
131 See Dickerson v. United States, 530 U.S. 428, 438 (2000)(striking down congressional statute purporting to overturn
the Court’s Fourth Amendment ruling in Miranda v. Arizona); City of Boerne v. Flores, 521 U.S. 507, 519
(1997)(Congress’ enforcement power under the Fourteenth Amendment does not extend to the power to alter the
Constitution); Plaut v. Spendthrift Farm, 514 U.S. 211, 225 (Congress may not disturb final court rulings).
132 80 U.S. (13 Wall.) 128 (1871).
passed a law designed to frustrate a finding of the Supreme Court as to the effect of a presidential 133
pardon. Similarly, a law that was specifically intended to grant the authority of the President to
adjudicate or remedy treaty violations could violate the doctrine of separation of powers, as 134
providing relief from acts in violation of treaties is a judicial branch function. Instead, what
appears to be the main thrust of this language is to establish the authority of the President within 135
the Executive Branch to issue interpretative regulations by Executive Order. However, the
context in which this additional authority would be needed is unclear.
One possible intent of this provision is that the President is being given the authority to
“interpret” the Geneva Convention for diplomatic purposes (e.g., to define treaty obligations and
encourage other countries to conform to such definitions). This interpretation seems unlikely, as 136
the President’s power in this regard is already firmly established. Another possible meaning is
that the President is being given the authority to apply the Geneva Conventions to particular fact
situations, such as specifying what type of interrogation techniques may be lawfully applied to a
particular individual suspected of being an enemy combatant. This interpretation is possible, but
it is not clear how the power to “interpret” would be significant in that situation, as the MCA
precludes application of the Geneva Convention in those contexts in which such interrogations 137
would be challenged—military commissions, habeas corpus, or any other civil proceeding.
The more likely intent of this language would be to give the President the authority to promulgate
regulations prescribing standards of behavior of employees and agents of federal agencies. For
instance, this language might be seen as authorizing the President to issue regulations to
implement how agency personnel should comply with the Geneva Conventions, policies which
might otherwise be addressed at the agency level. Thus, for instance, if the CIA had established
internal procedures regarding how to perform interrogation consistent with the Geneva
Convention, then this language would explicitly authorize the President to amend such 138
procedures by Executive Order. Whether the President already had such power absent this
language is beyond the scope of this report.
133 The Court struck down the law, essentially holding that the Congress had an illegitimate purpose in passage of the
law. “[T]he language of the proviso shows plainly that it does not intend to withhold appellate jurisdiction except as a
means to an end. Its great and controlling purpose is to deny to pardons granted by the President the effect which this
court had adjudged them to have. . . . It seems to us that this is not an exercise of the acknowledged power of Congress
to make exceptions and prescribe regulations to the appellate power.” 80 U.S. at 146. The Court also found that the
statue impaired the effect of presidential pardon, and thus “infringe[ed] the constitutional power of the Executive.” Id.
134 See generally Miller v. French, 530 U.S. 327, 350-51 (2000)(Souter, J., concurring).
135 MCA § 6(a)(3)(B).
136 “If the country with which the treaty is made is dissatisfied with the action of the legislative department, it may
present its complaint to the executive head of the government, and take such other measures as it may deem essential
for the protection of its interests. The courts can afford no redress. Whether the complaining nation has just cause of
complaint, or our country was justified in its legislation, are not matters for judicial cognizance.” Whitney v. Robertson
124 U.S. 190, 194 (1888).
137 MCA § 5(a). It is unclear why the MCA addresses the application of the Geneva Convention to habeas corpus
proceeding brought by detainees, since such suits are precluded by the DTA and the MCA. Section 1405(e) of P.L.
109-63; MCA, §7(a). It may be intended to apply to habeas cases brought by U.S. citizens or by aliens who do not fall
under the definition of “enemy combatant.” On the other hand, as will be discussed infra, there may be constitutional
issues associated with limiting access of enemy combatants to habeas corpus proceeding. In the event the habeas
restrictions of the DTA are found to be unconstitutional, then this provision may become relevant to those proceedings.
138 Executive Order 13340, Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of
Detention and Interrogation Operated by the Central Intelligence Agency, 72 Fed. Reg. 40707 (July 20, 2007).
Shortly after the enactment of the MCA, the government filed motions to dismiss all of the 139
habeas petitions in the D.C. Circuit involving detainees at Guantanamo Bay and the petition of 140
an alien detained as an enemy combatant in a naval brig in South Carolina. Legislation th
introduced at the end of the 109 Congress to amend the MCA did not reach the floor of either 141
Some observers raised concern that the MCA permits the President to detain American citizens as 142
enemy combatants without trial. The prohibition in the MCA with respect to habeas corpus
petitions applied only to those filed by or on behalf of aliens detained by the United States as
enemy combatants. However, the MCA can be read by implication to permit the detention of U.S.
citizens as enemy combatants, although it does not permit their trial by military commission,
which could affect their entitlement to relief using habeas corpus procedures.
A plurality of the Supreme Court held in 2004, in Hamdi v. Rumsfeld,143 that the President has the 144
authority to detain U.S. citizens as enemy combatants pursuant to the AUMF, but that the
determination of combatant status is subject to constitutional due process considerations. The
Hamdi plurality was limited to an understanding that the phrase “enemy combatant” means an
“individual who...was ‘part of or supporting forces hostile to the United States or coalition
partners’ in Afghanistan and who ‘engaged in an armed conflict against the United States’ 145
there,” but left it to lower courts to flesh out a more precise definition. The U.S. Court of
Appeals for the Fourth Circuit found that the definition continued to apply to a U.S. citizen who 146
returned to the United States from Afghanistan and was arrested at the airport. More recently,
the Fourth Circuit appears to have expanded the definition of “enemy combatant” to individuals
arrested in the United States on suspicion of planning to participate in terrorist acts without
necessarily having engaged in hostilities in Afghanistan. (See discussion of Al-Marri, supra.)
In theory, the executive branch could detain a citizen as an enemy combatant and argue that the
definition of “unlawful enemy combatant” provided in the MCA, which does not explicitly limit
the definition to aliens and includes persons who provide material support to terror groups
engaged in hostilities against the United States, should also apply to the detention authority
already found by virtue of the AUMF. Constitutional due process would apply, and the citizen
139 See Karen DeYoung, Court Told It Lacks Power in Detainee Cases, WASH. POST, October 20, 2006, at A18
(reporting notice submitted by Justice Department to courts of intention to move for dismissal of pending enemy
140 Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007), vacated sub nom. Al-Marri v. Pucciarelli, __F.3d __ (2008)(per
141 See S. 4081 and H.R. 6381, 109th Cong.
142 See, e.g., Scott Shane and Adam Liptak, Detainee Bill Shifts Power to President, N.Y. TIMES, September 30, 2006,
143 542 U.S. 507 (2004).
144 P.L. 107-40, 115 Stat. 224 (2001).
145 542 U.S. at 516.
146 Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005).
could petition for habeas corpus to challenge his detention, but under the MCA, the citizen-
combatant would not be able to assert rights based on the Geneva Convention in support of his
contention that he is not an enemy combatant. In that sense, U.S. citizens could be affected by the
MCA even though it does not directly apply to U.S. citizens.
On the other hand, since the MCA definition for unlawful enemy combatant applies on its face
only for the purposes of the new chapter 47a of Title 10, U.S. Code (providing for the trial by
military commission of alien unlawful enemy combatants), it may be argued that outside of that
context, the term “enemy combatant” should be understood in the ordinary sense, that is, to
include only persons who participate directly in hostilities against the United States. This
interpretation seems unlikely, given that it would also mean that this narrower definition of
“enemy combatant” was also meant to apply in the context of the MCA’s habeas corpus
provisions, such that some aliens who fall under the jurisdiction of a military commission under
the MCA would nevertheless have been able to argue that the MCA did not affect their right to
petition for habeas corpus or pursue any other cause of action in U.S. court, a reading that does
not seem consistent with Congress’s probable intent. Further, it does not appear that Congress
meant to apply a different definition of “enemy combatant” to persons depending on their
citizenship. Congress could specify that U.S. citizens captured in the context of the “Global War
on Terror” be subject to trial in U.S. court for treason or a violation of any other statute, or
prescribe procedures for determining whether U.S. citizens are subject to detention as enemy
combatants, if constitutional, but it has not done so.
At the same time as it was considering the Boumediene case, the D.C. Circuit was reviewing
several challenges brought pursuant to the DTA in which detainees contested CSRT
determinations that they are properly detained as “enemy combatants.” The most advanced of
these cases involved Haji Bismullah, who was captured in Afghanistan in 2003, and Husaifa
Parhat and six other detainees, all ethnic Chinese Uighers captured in Pakistan in December 2001.
At issue at this stage in the proceedings was a series of motions filed by both parties seeking to
establish procedures governing access to classified information, attorneys’ access to clients, and
other matters. The petitioners sought to have the court adopt rules similar to what the district
court had ordered when the cases were before it on petitions of habeas corpus. The government
sought to establish rules restricting scope of discovery and attorney-client communication to what
it viewed as the proper scope of the court’s review, that is, the CSRT proceedings.
The D.C. Circuit in July 2007 issued an order rejecting the government’s motion to limit the 147
scope of the court’s review to the official record of the CSRT hearings (Bismullah I). Rather,
the court decided, in order to determine whether a preponderance of evidence supported the
CSRT determinations, it must have access to all the information a CSRT “is authorized to obtain
and consider, pursuant to the procedures specified by the Secretary of Defense.” The court denied
the petitioners’ motion for discovery, at least for the time being, stating there was no need for
additional evidence to challenge a CSRT’s ruling that specific evidence or a witness was not
147 Bismullah v. Gates, 501 F.3d 178 (Bismullah I), reh’g denied 503 F.3d 137(D.C. Cir. 2007) (Bismullah II).
reasonably available. And, because the DTA does not authorize the court to hold a status
determination invalid as “arbitrary and capricious,” there was no need for it to evaluate the
conduct of other detainees’ CSRTs. The court also denied as unnecessary the petitioners’ motion
to appoint a special master.
The court also promised to enter a protective order to implement guidelines for handling
classified and sensitive information and for government monitoring of attorney client written
communications (“legal mail”). Again stressing its mandate under the DTA to determine whether
a preponderance of the evidence supports a CSRT’s status determination, the court found that
counsel for the detainees, to aid in their capacity to assist the court, should be presumed to have a
“need to know” all government information concerning their clients except for highly sensitive
information, in which case the government could present the evidence to the court ex parte. The
court rejected the government’s proposal that would have allowed the government, rather than the
court, to determine what unclassified information would be required to be kept under seal. With
respect to legal mail, the court agreed to the government’s proposal to have mail from attorneys to
detainees reviewed by a “privilege team,” composed of Department of Defense personnel not
involved in the litigation, to redact information not pertinent to matters within the court’s limited
scope of review.
The government asked the panel to reconsider the ruling based on its belief that the order would
require the government to undertake an overly burdensome search of all relevant federal agencies
in order to create a new record for each detainee that would be entirely different from the record
reviewed by the CSRT for that case. The court denied the request for rehearing, explaining its
view that its previous order would not require a search for information that is not “reasonably 148
available” (Bismullah II). The court also suggested that the government might instead convene
new CSRTs to reconfirm the detainees’ status, this time ensuring that the relevant documents are
retained for the purpose of review under the DTA. The government also objected to the
requirement that it turn over classified information to the petitioners’ counsel on the basis of the
risk to intelligence sources and methods as well as the burden of conducting the necessary
reviews to determine which information must be turned over. The court rejected the argument,
pointing out that DOD regulations declare classified information to be not reasonably available
where the originating agency declines to authorize its use in the CSRT process. In light of this
fact, the court suggested, the burden of reviewing the information should not be as great as the
government had argued.
The government then asked for an en banc hearing, but the D.C. Circuit, evenly divided, 149
declined. The government then sought expedited review at the Supreme Court, urging the Court
to decide the cases concurrently with the Boumediene case, but the Court took no action on the 150
request. Instead, it granted certiorari and vacated the decision, remanding for reconsideration in 151
light of its decision in Boumediene. On August 22, 2008, the D.C. Circuit reinstated without
explanation its decisions in Bismullah I and Bismullah II, presumably because it did not find the 152
Boumediene ruling to conflict with its decisions in these cases.
148 Bismullah II, 503 F. 3d 137 (D.C. Cir. 2007).
149 Bismullah v. Gates, 514 F.3d 1291 (D.C. Cir. 2008).
150 Gates v. Bismullah (U.S., filed February 14, 2008) (07-1054).
151 Gates v. Bismullah, 128 S.Ct. 2960 (2008).
152 Bismullah v. Gates, Case No. 06-1197, Order (D.C. Cir. August 22, 2008) (per curium), available at
The D.C. Circuit’s determination of how to carry out its mandate under the DTA was a matter of
interest to the Supreme Court as it was considering Boumediene, and may have had some bearing
on the ultimate determination in that case that the DTA procedures are not an adequate substitute
for the writ of habeas corpus. Accordingly, it may be worthwhile to review some of the
shortcomings described by the dissent, the only opinion of the panel that addressed the adequacy
of the DTA procedures as a substitute for habeas corpus. Judge Janice Rogers Brown, concurring
separately in Bismullah I, set forth a number of issues she felt call into question the fairness of the
CSRT proceedings. For example, she noted that the detainee bears the burden of proving that he
is not an “enemy combatant”—a term she described as elastic in nature, even though the detainee
may not be aware of the information he is expected to rebut, all without the assistance of 153
counsel. Further, the record presented to the CSRT is limited by the Executive, and the
detainee’s only recourse for seeking further evidence is through the DTA review process. If the 154
detainee is successful in obtaining new evidence, his remedy appears to be a new CSRT.
Finally, she noted evidence that the CSRTs do not necessarily follow their own regulations 155
regarding the collection and presentation of evidence.
In October 2007, while the government’s petition to the Supreme Court for certiorari in the
Bismullah case was pending, the government produced to the counsel of Husaifa Parhat, one of
the parties to the Bismullah case, a record (including both classified and unclassified material) of
what was actually presented to Parhat’s CSRT. Parhat subsequently filed a separate motion to the
D.C. Circuit requesting review of the CSRT’s determination that he was an enemy combatant. In
June 2008, a three-judge panel for the D.C. Circuit ruled in the case of Parhat v. Gates that
petitioner had been improperly deemed an “enemy combatant” by a CSRT, the first ruling of its
kind by a federal court. Because the court’s opinion contained classified information, only a 156
redacted version has been released.
Parhat, an ethnic Chinese Uigher captured in Pakistan in December 2001, was found to be an
“enemy combatant” by the CSRT on account of his affiliation with a Uighur independence group
known as the East Turkistan Islamic Movement (ETIM), which was purportedly “associated”
with Al Qaeda and the Taliban and engaged in hostilities against the United States and its
coalition partners. The basis for Parhat’s alleged “affiliation” with the ETIM was that an ETIM
leader ran a camp in Afghanistan where Parhat had lived and received military training. For his
part, Parhat denied membership in the ETIM or engagement in hostilities against the United
States, and claimed he traveled to Afghanistan solely to join the resistance against China, which
was not alleged to have been a coalition partner of the United States.
The Circuit Court agreed with Parhat that the record before the CSRT did not support the finding
that he was an “enemy combatant,” as that term had been defined by the DOD, and accordingly
the CSRT’s determination was not supported by a “preponderance of the evidence” and
“consistent with the standards and procedures specified by the Secretary of Defense for
153 See Bismullah I, 501 F.3d at 193 (Rogers, J. Concurring).
155 Id. (citing differences between written procedures and those described by Rear Admiral James M. McGarrah in the
156 Parhat v. Gates,—- F.3d——, 2008 WL 2576977, No. 06-1397 (June 20, 2008).
Combatant Status Review Tribunals,” as required by the DTA.157 The DOD defined an “enemy
an individual who was part of or supporting Taliban or al Qaida forces, or associated forces
that are engaged in hostilities against the United States or its coalition partners. This includes
any person who has committed a belligerent act or has directly supported hostilities in aid of 158
enemy armed forces.
Both parties agreed that for a detainee who is not a member of the Taliban or Al Qaeda to be
deemed an enemy combatant under this definition, the government must demonstrate by a
preponderance of the evidence that (1) the detainee was part of or supporting “forces”; (2) those
forces are associated with Al Qaeda or the Taliban; and (3) the forces are engaged in hostilities 159
against the United States or its coalition partners.
The Circuit Court found that the evidence presented by the government to support the second and
third elements was insufficient to support the CSRT’s determination that Parhat was an enemy
combatant. Most significantly, the court found that the principal evidence presented by the
government regarding these elements—four government intelligence documents describing ETIM
activities and the group’s relationship with Al Qaeda and the Taliban—did not “provide any of the
underlying reporting upon which the documents’ bottom-line assertions are founded, nor any 160
assessment of the reliability of that reporting.” As a result, the Circuit Court found that neither
the CSRT nor the reviewing court itself were capable of assessing the reliability of the assertions
made by the documents. Accordingly “those bare assertions cannot sustain the determination that 161
Parhat is an enemy combatant,” and the CSRT’s designation was therefore improper. The
Circuit Court stressed that it was not suggesting that hearsay evidence could never reliably be
used to determine whether a person was an enemy combatant, or that the government must
always submit the basis for its factual assertions to enable an assessment of its claims. However,
evidence “must be presented in a form, or with sufficient additional information, that permits the 162
[CSRT] and court to assess its reliability.”
Having found that the evidence considered by the CSRT was insufficient to support the
designation of Parhat as an enemy combatant, the Circuit Court next turned to the question of
remedy. Although Parhat urged the court to order his release or transfer to a country other than
China, the court declined to grant such relief, postulating that the government might wish to hold
another CSRT in which it could present additional evidence to support Parhat’s designation as an
enemy combatant. While acknowledging that the DTA did not expressly grant the court release
authority over detainees, the court stated that there was nonetheless “a strong argument...[that
release authority] is implicit in our authority to determine whether the government has sustained
157 Although Parhat argued that the DOD’s regulatory definition of “enemy combatant” exceeded the scope authorized
by the 2001 AUMF, the Circuit Court declined to reach this issue, finding that the government provided insufficient
evidence to demonstrate that Parhat met the DOD’s own regulatory definition.
158 Id., 2008 WL 2576977 at *7, quoting Dept. of Def. Order Establishing Combatant Status Review Tribunal (July 7,
2004), at 1.
160 Id., 2008 WL 2576977 at *11.
162 Id., 2008 WL 2576977 at *14.
its burden of proving that a detainee is an enemy combatant,”163 and indicated that it would not
“countenance ‘endless do-overs’” in the CSRT process.
The Circuit Court also noted that following the Supreme Court’s ruling in Boumediene, Parhat
could pursue immediate habeas relief in federal district court, where he would “be able to make
use of the determinations we have made today regarding the decision of his CSRT, and...raise
issues that we did not reach” before a court which unquestionably would have the power to order 164
his release. Parhat has also filed a habeas petition with the U.S. District Court for D.C., and 165
requested that the court parole him into the United States pending the court’s ruling. Parhat’s
case, along with his motion for parole into the U.S., is currently pending.
The petitioners in Boumediene are aliens detained at Guantanamo who sought habeas review of
their continued detention. Rather than pursuing an appeal of their designation as enemy
combatants by CSRTs using the DTA appeals process, the petitioners sought to have the district 167
court decisions denying habeas review reversed on the basis that the MCA’s “court-stripping” 168
provision was unconstitutional. On appeal, the D.C. Circuit affirmed, holding that the MCA
stripped it and all other federal courts of jurisdiction to consider petitioners’ habeas applications. 169
Relying upon its earlier opinion in Al Odah v. United States and the 1950 Supreme Court case 170
Johnson v. Eisentrager, in which the Supreme Court found that the constitutional writ of
habeas was not available to enemy aliens imprisoned for war crimes in post-WWII Germany, the
D.C. Circuit held that the MCA’s elimination of habeas jurisdiction did not operate as an
unconstitutional suspension of the writ, because aliens held by the United States in foreign 171
territory do not have a constitutional right to habeas. Consequently, the court did not examine
whether the DTA provides an adequate substitution for habeas review.
163 Parhat, 2008 WL 2576977 at *14.
164 Id., 2008 WL 2576977 at *15.
165 Husaifa Parhat’s Motion for Immediate Release on Parole into the Continental United States Pending Final
Judgment on His Habeas Petition, In re: Guantanamo Bay Litigation, No. 05-1509 (July 23, 2008).
166 For further discussion, see CRS Report RL34536, Boumediene v. Bush: Guantanamo Detainees’ Right to Habeas
Corpus, by Michael John Garcia.
167 The practice of divesting courts of jurisdiction over particular issues is sometimes referred to as “court-stripping.”
168 In re Guantanamo Cases, 355 F. Supp. 2d 443 (D.D.C. 2005) and Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C.
2005), consolidated, vacated and dismissed sub nom. Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007).
169 Al Odah v. United States, 321 F.3d 1134 (D.C. Cir 2003), rev’d sub nom Rasul v. Bush, 542 U.S. 466 (2004).
170 339 U.S. 763 (1950).
171 476 F.3d 981 (D.C. Cir. 2007). Judge Randolph, joined by Judge Sentelle, found that the measure does not
constitute a suspension of the Writ within the meaning of the Constitution because the majority was “aware of no case
prior to 1789 going the detainees’ way,” and were thus convinced that “the writ in 1789 would not have been available
to aliens held at an overseas military base leased from a foreign government.” Judge Rogers, in dissent, would have
given greater deference to the Supreme Court’s Rasul opinion, in which it drew a distinction between the situation
faced by the Guantanamo detainees and the post-WWII convicts, 542 U.S. 466, 475 (2004), and in which it found the
naval base to be within the historical scope of the Writ. Boumediene, 476 F.3d at 1002 (Rogers, J., dissenting))(citing
Sierra Club v. EPA, 322 F.3d 718, 724 (D.C. Cir. 2003)).
The Supreme Court initially denied the petitioners’ request for review,172 with three Justices 173
dissenting to the denial and two Justices explaining the basis for their support. In June 2007,
however, the Court reversed its denial and granted certiorari to consider the consolidated cases of
Boumediene and Al Odah. In a 5-4 opinion authored by Justice Kennedy, the Court reversed the
D.C. Circuit and held that petitioners had a constitutional right to habeas that was withdrawn by 174
the MCA in violation of the Constitution’s Suspension Clause.
The petitioners in Boumediene argued that they possess a constitutional right to habeas, and that
the MCA deprived them of this right in contravention of the Suspension Clause, which prohibits
the suspension of the writ of habeas except “when in Cases of Rebellion or Invasion the public
Safety may require it.” The MCA did not expressly purport to be a formal suspension of the writ
of habeas, and the government did not make such a claim to the Court. Instead, the government
argued that aliens designated as enemy combatants and detained outside the de jure territory of
the United States have no constitutional rights, including the constitutional privilege to habeas,
and that therefore stripping the courts of jurisdiction to hear petitioners’ habeas claims did not
violate the Suspension Clause.
The Court began its analysis by surveying the history and origins of the writ of habeas corpus,
emphasizing the importance placed on the writ for the Framers, while also characterizing its prior
jurisprudence as having been “careful not to foreclose the possibility that the protections of the
Suspension Clause have expanded along with post-1789 developments that define the present 175
scope of the writ.” The Court characterized the Suspension Clause as not only a “vital
instrument” for protecting individual liberty, but also a means to ensure that the judiciary branch
would have, except in cases of formal suspension, “a time-tested device, the writ, to maintain the
delicate balance of governance” between the branches and prevent “cyclical abuses” of the writ 176
by the executive and legislative branches. The Court stated that the separation-of-powers
doctrine and the history shaping the design of the Suspension Clause informed its interpretation
of the reach and purpose of the Clause and the constitutional writ of habeas.
The Court found the historical record to be inconclusive for resolving whether the Framers would
have understood the constitutional writ of habeas as extending to suspected enemy aliens held in
foreign territory over which the United States exercised plenary, but not de jure control.
Nonetheless, the Court interpreted the Suspension Clause as having full effect at Guantanamo.
While the Court did not question the government’s position that Cuba maintains legal sovereignty
over Guantanamo under the terms of the 1903 lease giving the U.S. plenary control over the
172 Boumediene v. Bush, 127 S.Ct. 1478 (2007).
173 Justice Stevens, joined by Justice Kennedy, wrote a statement explaining their view that, “despite the obvious
importance of the issues raised,” the petitioners should first exhaust remedies available under the DTA unless the
petitoners can show that the government is causing delay or some other ongoing injury that would make those remedies
inadequate. Id. at 1478. Justice Breyer, joined by Justices Souter and Ginsburg, would have granted certiorari to
provide immediate attention to the issues. The dissenters viewed it as unlikely that further treatment by the lower courts
might elucidate the issues, given that the MCA limits jurisdiction to the Court of Appeals for the D.C. Circuit, which
had already indicated that Guantanamo detainees have no constitutional rights. Justices Breyer and Souter would have
granted expedited consideration.
174 U.S. CONST. Art. 1, § 9, cl. 2.
175 Boumediene at 2248 (citing INS v. St. Cyr, 533 U. S. 289, 300—301(2001)).
176 Id. at 2247.
territory, it disagreed with the government’s position that “at least when applied to non-citizens, 177
the Constitution necessarily stops where de jure sovereignty ends.”
Instead, the Court characterized its prior jurisprudence as recognizing that the Constitution’s 178
extraterritorial application turns on “objective factors and practical concerns.” Here, the Court
emphasized the functional approach taken in the Insular Cases, where it had assessed the
availability of constitutional rights in incorporated and unincorporated territories under the 179
control of United States. Although the government argued that the Court’s subsequent decision
in Eisentrager stood for the proposition that the constitutional writ of habeas does not extend to
enemy aliens captured and detained abroad, the Court found this reading to be overly constrained.
According to the Court, interpreting the Eisentrager ruling in this formalistic manner would be
inconsistent with the functional approach taken by the Court in other cases concerning the 180
Constitution’s extraterritorial application, and would disregard the practical considerations that
informed the Eisentrager Court’s decision that the petitioners were precluded from seeking
Based on the language found in the Eisentrager decision and other cases concerning the
extraterritorial application of the Constitution, the Court deemed at least three factors to be
relevant in assessing the extraterritorial scope of the Suspension Clause: (1) the citizenship and
status of the detainee and the adequacy of the status determination process; (2) the nature of the
site where the person is seized and detained; and (3) practical obstacles inherent in resolving the
prisoner’s entitlement to the writ.
Applying this framework, the Court characterized petitioners’ circumstances in the instant case as
being significantly different from those of the detainees at issue in Eisentrager. Among other
things, the Court noted that unlike the detainees in Eisentrager, the petitioners denied that they
were enemy combatants, and the government’s control of the post-WWII, occupied German
territory in which the Eisentrager detainees were held was not nearly as significant nor secure as
its control over the territory where the petitioners are located. The Court also found that the
procedural protections afforded to Guantanamo detainees in CSRT hearings are “far more limited
[than those afforded to the Eisentrager detainees tried by military commission], and, we
conclude, fall well short of the procedures and adversarial mechanisms that would eliminate the 181
need for habeas corpus review.”
While acknowledging that it had never before held that noncitizens detained in another country’s
territory have any rights under the U.S. Constitution, the Court concluded that the case before it 182
“lack[ed] any precise historical parallel.” In particular, the Court noted that the Guantanamo
177 Id. at 2253.
178 Id. at 2258.
179 See De Lima v. Bidwell, 182 U. S. 1 (1901); Dooley v. United States, 182 U. S. 222 (1901); Armstrong v. United
States, 182 U. S. 243 (1901); Downes v. Bidwell, 182 U. S. 244; Hawaii v. Mankichi, 190 U. S. 197 (1903); Dorr v.
United States, 195 U. S. 138 (1904).
180 Boumediene, at 2255-56, 2258 (discussing plurality opinion in Reid v. Covert, 354 U. S. 1 (1957)). In his concurring
opinion in Reid, Justice Harlan argued that whether a constitutional provision has extraterritorial effect depends upon
the “particular circumstances, the practical necessities, and the possible alternatives which Congress had before it” and,
in particular, whether judicial enforcement of the provision would be “impracticable and anomalous.” Reid, 354 U.S. at
74—75 (Harlan, J., concurring in result).
181 Id. at 2260.
182 Id. at 2262.
detainees have been held for the duration of a conflict that is already one of the longest in U.S.
history, in territory that, while not technically part of the United States, is subject to complete
U.S. control. Based on these factors, the Court concluded that the Suspension Clause has full
effect at Guantanamo.
Having decided that petitioners possessed a constitutional privilege to habeas corpus, the Court
next assessed whether the court-stripping measure of MCA § 7 was impermissible under the
Suspension Clause. Because the MCA did not purport to be a formal suspension of the writ, the
question before the Court was whether Congress had provided an adequate substitute for habeas
corpus. The government argued that the MCA complied with the Suspension Clause because it
applied the DTA’s review process to petitioners, which the government claimed was a
constitutionally adequate habeas substitute.
Though the Court declined to “offer a comprehensive summary of the requisites for an adequate
substitute for habeas corpus,” it nonetheless deemed the habeas privilege, at minimum, as
entitling a prisoner “to a meaningful opportunity to demonstrate that he is being held pursuant to
‘the erroneous application or interpretation’ of relevant law,” and empowering a court “to order
the conditional release of an individual unlawfully detained,” though release need not be the 183
exclusive remedy or appropriate in every instance where the writ is granted. Additionally, the
necessary scope of habeas review may be broader, depending upon “the rigor of any earlier 184
The Court noted that petitioners identified a myriad of alleged deficiencies in the CSRT process
which limited a detainee’s ability to present evidence rebutting the government’s claim that he is
an enemy combatant. Among other things, cited deficiencies include constraints upon the
detainee’s ability to find and present evidence at the CSRT stage to challenge the government’s
case; the failure to provide a detainee with assistance of counsel; limiting the detainee’s access to
government records other than those that are unclassified, potentially resulting in a detainee being
unaware of critical allegations relied upon by the government to order his detention; and the fact 185
that the detainee’s ability to confront witnesses may be “more theoretical than real,” given the
minimal limitations placed upon the admission of hearsay evidence.
While the Court did not determine whether the CSRTs, as presently constituted, satisfy due
process standards, it agreed with petitioners that there was “considerable risk of error in the 186
tribunal’s findings of fact.” “[G]iven that the consequence of error may be detention for the 187
duration of hostilities that may last a generation or more, this is a risk too serious to ignore.”
The Court held that for either the writ of habeas or an adequate substitute to function as an
effective remedy for petitioners, a court conducting a collateral proceeding must have the ability
to (1) correct errors in the CSRT process; (2) assess the sufficiency of the evidence against the
183 Boumediene, at 2266-67.
184 Id. at 2268.
185 Id. at 2269.
186 Id. at 2270.
detainee; and (3) admit and consider relevant exculpatory evidence that was not introduced in the
The Court held that the DTA review process is a facially inadequate substitute for habeas review.
It listed a number of potential constitutional infirmities in the review process, including the
absence of provisions (1) empowering the D.C. Circuit to order release from detention; (2)
permitting petitioners to challenge the President’s authority to detain them indefinitely; (3)
enabling the appellate court to review or correct the CSRT’s findings of fact; and (4) permitting
the detainee to present exculpatory evidence discovered after the conclusion of CSRT
proceedings. As a result, the Court deemed MCA § 7’s application of the DTA review process to
petitioners as failing to provide an adequate substitute for habeas, therefore effecting an
unconstitutional suspension of the writ.
In light of this conclusion, the Court held that petitioners could immediately pursue habeas
review in federal district court, without first obtaining review of their CSRT designations from
the D.C. Circuit as would otherwise be required under the DTA review process. While prior
jurisprudence recognized that prisoners are generally required to exhaust alternative remedies
before seeking federal habeas relief, the Court found that petitioners in the instant case were
entitled to a prompt habeas hearing, given the length of their detention. The Court stressed,
however, that except in cases of undue delay, federal courts should generally refrain from
considering habeas petitions of detainees being held as enemy combatants until after the CSRT
had an opportunity to review their status. Acknowledging that the government possesses a
“legitimate interest in protecting sources and methods of intelligence gathering,” the Court
announced that it expected courts reviewing Guantanamo detainees habeas claims to use
“discretion to accommodate this interest to the greatest extent possible,” so as to avoid 188
“widespread dissemination of classified information.”
As a result of the Boumediene decision, detainees currently held at Guantanamo may petition a
federal district court for habeas review of status determinations made by a CSRT. However, the
full consequences of the Boumediene decision are likely to be significantly broader. While the
petitioners in Boumediene sought habeas review of their designation as enemy combatants, the
Court’s ruling that the constitutional writ of habeas extends to Guantanamo suggests that
detainees may also seek judicial review of claims concerning unlawful conditions of treatment or 189
confinement or to protest a planned transfer to the custody of another country.
The conduct of trials before military commissions at Guantanamo may also be affected by
Boumediene, as enemy combatants may now potentially raise constitutional arguments against
their trial and conviction. Aliens convicted of war crimes before military commissions may also
potentially seek habeas review of their designation as an enemy combatant by the CSRT, a
designation that served as a legal requisite for their subsequent prosecution before a military
188 Id. at 2275.
189 See Boumediene, at 2274 (“In view of our holding we need not discuss the reach of the writ with respect to claims of
unlawful conditions of treatment or confinement.”).
Although the Boumediene Court held that DTA review procedures were an inadequate substitute
for habeas, it made “no judgment as to whether the CSRTs, as currently constituted, satisfy due 190
process standards,” and emphasized that “both the DTA and the CSRT process remain intact.”
Whether these procedures violate due process standards, facially or as applied in a given case,
and whether a particular detainee is being unlawfully held, are issues that will be addressed by the
District Court when reviewing the habeas claims of Guantanamo detainees.
Some 250 habeas petitions have been filed on behalf of Guantanamo detainees in the U.S.
District Court for the District of Columbia. In the aftermath of the Boumediene ruling, the District
Court adopted a resolution for the coordination and management of Guantanamo cases. The
resolution calls for all current and future Guantanamo cases to be transferred by the judge to
whom they have been assigned to Senior Judge Thomas F. Hogan, who has been designated to
coordinate and manage all Guantanamo cases so that they may be “addressed as expeditiously as 191
possible as required by the Supreme Court in Boumediene v. Bush....” Judge Hogan is
responsible for identifying and ruling on procedural issues common to the cases. The transferring
judge will retain the case for all other purposes, though Judge Hogan is to confer with those
judges whose cases raise common substantive issues, and he may address those issues with the
consent of the transferring judge. District Court Judges Richard J. Leon and Emmet G. Sullivan
have declined to transfer their cases for coordination, and it is possible that the three judges may
reach differing opinions regarding issues common to their respective cases.
The Supreme Court decision in Boumediene holding that the DTA violates the Constitution’s
Suspension Clause (article I, § 9, cl. 2) leaves open a number of constitutional questions
regarding the scope of the Writ of Habeas Corpus and what options are open to Congress to make
rules for the detention of suspected terrorists. The following sections provide a brief background
of the writ of habeas corpus in the United States, outline some proposals for responding to the
Boumediene holding, and discuss relevant constitutional considerations.
The Writ of Habeas Corpus (ad subjiciendum), also known as the Great Writ, has its origin in 192
Fourteenth Century England. It provides the means for those detained by the government to ask
a court to order their warden to explain the legal authority for their detention. In the early days of
the Republic, its primary use was to challenge executive detention without trial or bail, or
pursuant to a ruling by a court without jurisdiction, but the writ has expanded over the years to
include a variety of collateral challenges to convictions or sentences based on alleged violations 193
of fundamental constitutional rights. The habeas statute provides jurisdiction to hear petitions
by persons claiming that they are held “in custody in violation of the Constitution or laws or 194
treaties of the United States.” A court reviewing a petition for habeas corpus does not
190 Id. at 2275.
191 U.S. Dist. Court for the District of Columbia, Resolution of the Executive Session, July 1, 2008, available at
192 For a general background and description of related writs, see 39 AM. JUR. 2d. Habeas Corpus § 1 (1999).
193 See generally S. DOC. NO. 108-17 at 848 et seq.
194 Rasul v. Bush, 542 U.S. 466 (2004).
determine the guilt or innocence of the petitioner; rather, it tests the legality of the detention and
the custodian’s authority to detain. If the detention is not supported by law, the detainee is to be 195
released. Minor irregularities in trial procedures that do not amount to violations of 196
fundamental constitutional rights are generally to be addressed on direct appeal.
Article I, § 9, cl. 2, of the Constitution provides: “The Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may
require it.” Given the emphasis the Rasul Court had placed on the distinction between the
statutory and constitutional entitlement to habeas corpus, it might have seemed reasonable to
suppose that Congress retained the power to revoke by statute what it had earlier granted without
offending either the Court or the Constitution, without regard to establishing a public safety
justification. However, as the Boumediene case demonstrates, the special status accorded the Writ
by the Suspension Clause complicates matters.
The relevance of the distinction between a “statutory” and a “constitutional” privilege of habeas
corpus is not entirely clear. The federal courts’ power to review petitions under habeas corpus has 197
historically relied on statute, but it has been explained that the Constitution obligates Congress 198
to provide “efficient means by which [the Writ] should receive life and activity.” While the
Court has stated that “at the absolute minimum, the Suspension Clause protects the writ ‘as it 199
existed in 1789,’” it has also presumed that “the Suspension Clause of the Constitution refers to 200
the writ as it exists today, rather than as it existed in 1789.” The Boumediene Court declined to 201
adopt a date of reference by which the constitutional scope of the writ is to be judged.
Accordingly, it remains unclear whether statutory enhancements of habeas review can ever be 202
rolled back without implicating the Suspension Clause. The constitutionally mandated scope of
the writ may turn on the same kinds of “objective factors and practical considerations” that the
Court stated would determine the territorial scope of the writ.
Under Boumediene, it appears that Congress’s ability to revoke altogether the courts’ jurisdiction
over habeas petitions by certain classes of persons is constrained by the Constitution, but
Congress has the power to impose some procedural regulations that may limit how courts 203
consider such cases. Congress also retains the option of withdrawing habeas jurisdiction if it
195 Ex parte Watkins, 28 U.S. (3 Pet.) 193, 201 (1830) (Marshall, C.J.) (“The writ of habeas corpus is a high
prerogative writ, known to the common law, the great object of which is the liberation of those who may be imprisoned
without sufficient cause.”).
196 39 AM. JUR. 2d. Habeas Corpus § 27 (1999).
197 Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807).
198 Id. at 94.
199 Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289, 301 (U.S. 2001).
200 Felker v. Tupin, 518 U.S. 663 (1996)(citing Swain v. Pressley, 430 U.S. 372 (1977)).
201 See Boumediene at 2248 (“ The Court has been careful not to foreclose the possibility that the protections of the
Suspension Clause have expanded along with post-1789 developments that define the present scope of the writ.”).
202 Cf. INS v. St. Cyr, 533 U.S. 289, 340 n.5 (2001) (Scalia, J., dissenting)(“If . . . the writ could not be suspended
within the meaning of the Suspension Clause until Congress affirmatively provided for habeas by statute, then surely
Congress may subsequently alter what it had initially provided for, lest the Clause become a one-way ratchet.”).
203 Cf. Felker (Holding that restrictions on successive petitions for habeas corpus by prisoners convicted in state courts
did not suspend the writ, but merely applied a modified res judicata rule to control abuse of the writ); Boumediene at
2276-77 (explaining that some reasonable regulations on habeas cases to relieve governmental burden or preserve
security will be permissible).
provides an effective and adequate alternative means of pursuing relief.204 The Court’s opinion in
Boumediene did not fully delineate the lower bounds of what the Court might consider as
necessary either to preserve the constitutional scope of the writ or to provide an adequate
substitute, but indicated that the prisoners are entitled to “a meaningful opportunity to
demonstrate that [they are] being held pursuant to the erroneous application or interpretation of 205
relevant law.” A more direct option to affect the outcome of habeas cases brought by detainees
may involve enacting a clear statutory definition of who may be detained and the purpose of the
detention, along with an appropriate procedure designed to distinguish those who meet the
definition from those who do not. Such an approach could potentially increase certainty with
respect to courts’ decisions regarding whether the detention of particular alleged enemy
combatants comports with statutes and treaties, although constitutionally based claims may
remain less predictable.
Congress could formally suspend the writ with respect to the detainees, although it is unclear 206
whether Congress’s views regarding the requirements of public safety are justiciable. If they
are, then a reviewing court’s assessment of the constitutionality of habeas-suspending legislation
would likely turn on whether Al Qaeda’s terrorist attacks upon the United States qualify as a
“rebellion or invasion,” and whether the court finds that “the public safety” requires the
suspension of the writ.
Congress might be able to impose some limitations upon judicial review of CSRT determinations
if it strengthened the procedural protections afforded to detainees in CSRT status hearings.
Legislation addressing some or all of the potential procedural inadequacies in the CSRT process
identified in Boumediene might permit judicial review of CSRT determinations to be further
Attorney General Michael Mukasey has recommended that Congress enact new legislation to
eliminate the DTA appeals process and make habeas corpus the sole avenue for detainees to
challenge their detention in civilian court, and also to eliminate challenges to conditions of
confinement or transfers out of US custody. In a speech before the American Enterprise Institute 207
on July 21, 2008, General Mukasey discussed this suggestion along with five other points he
feels Congress should address:
• Courts should be prohibited from ordering that an alien captured and detained
abroad be brought to the United States for court proceedings, or be admitted and
released into the United States.
• Procedures should be put in place to ensure that intelligence information,
including sources and methods, would be protected from disclosure to terrorist
204 See United States v. Hayman, 342 U.S. 205 (1952); Hill v. United States, 368 U.S. 424 (1962); Swain v. Pressley,
430 U.S. 372 (1977); Felker v. Turpin, 518 U.S. 651 (1996); Immigration and Naturalization Service v. St. Cyr, 533
U.S. 289 (2001).
205 Boumediene at 2266.
206 The Boumediene Court did not address the matter because the MCA did not purport to act as a formal suspension of
the writ. Boumediene at 2262.
207 The Attorney General’s prepared statement is available at http://www.scotusblog.com/wp/mukasey-curb-courts-
• Detainees awaiting trial by military commission should be prevented from
bringing habeas petitions until the completion of their trials.
• Congress should reaffirm the authority to detain as enemy combatants persons
who have “engaged in hostilities or purposefully supported al Qaeda, the Taliban,
and associated organizations.”
• Congress should establish sensible procedures for habeas challenges by
assigning one district court exclusive jurisdiction over the cases, with one judge
deciding common legal issues; by adopting “rules that strike a reasonable balance
between the detainees’ rights to a fair hearing ... and our national security needs
...” that would “not provide greater protection than we would provide to
American citizens held as enemy combatants in this conflict”; and ensuring that
court proceedings “are not permitted to interfere with the mission of our armed
Other proposals that have been floated include the creation of a new national security court to 208
authorize preventive detention of terror suspects or the use of civilian or military courts to
prosecute all detainees who cannot be released to their home country or another country willing
to take them. Among the issues associated with prosecuting all of the detainees in civilian court is
that the detainees may not have committed any crimes cognizable in federal court. Persons
accused of engaging in terrorist acts (including attempts, conspiracies and the like) against the 209
United States could likely be prosecuted, but jurisdiction over offenses involving the provision
of material support to a terrorist organization abroad is somewhat more limited, and for acts 210
occurring prior to 2004, included only persons subject to the jurisdiction of the United States.
Congress could also take no action and allow the courts to address the issues in the course of
deciding the habeas petitions already docketed.
Whether Congress enacts legislation to guide the courts or permits courts to resolve the habeas
cases as they now stand, courts will be faced with determining the scope of the writ as it applies
to detainees in Guantanamo and perhaps elsewhere. Although the Boumediene Court held that
DTA review procedures were an inadequate substitute for habeas, it expressly declined to assess 211
“the content of the law that governs” the detention of aliens at Guantanamo. Nonetheless, the
Supreme Court identified a number of potential deficiencies in the status review process that
208 See Improving Detainee Policy: Handling Terrorism Detainees within the American Justice System, Hearing before
the Senate Judiciary Committee, June 4, 2008. For a review and criticism of some proposals, see the Constitution
Project, A Critique of “National Security Courts,” available at http://www.constitutionproject.org/pdf/
209 See, e.g., 18 U.S.C. § 2332 (prescribing penalties for homicides of U.S. nationals abroad and other violence directed
at the United States, so long as the act is “intended to coerce, intimidate, or retaliate against a government or a civilian
population”); 18 U.S.C. § 2232b (acts of terrorism transcending national boundaries).
210 See 18 U.S.C. § 2339B (provision of material support to designated terrorist organization prior to amendment by
P.L. 108-458, § 6603(d), December 17, 2004); see also 18 U.S.C. § 2339 (proscribing harboring or concealing
terrorists, but only after October 26, 2001 enactment of P.L. 107-56, title VIII, § 803(a)). The Ex Post Facto Clause
prevents prosecution for charges that would not have been applicable when the offense occurred, U.S. CONST. art. 1, §
9, cl. 3.
211 Boumediene, at 67.
necessitated habeas review of CSRT determinations, including the detainee’s lack of counsel
during the hearings; the presumption of validity accorded to the government’s evidence;
procedural and practical limitations upon the detainee’s ability to present evidence rebutting the
government’s charges against him and to confront witnesses; potential limitations on the
detainee’s ability to introduce exculpatory evidence; and limitations on the detainee’s ability to
learn about the nature of the government’s case against him to the extent that it is based upon 212
classified evidence. Whether these procedures violate due process standards, facially or as
applied in a given case, and whether a particular detainee is being unlawfully held, are issues that
will be addressed by the District Court when reviewing the habeas claims of Guantanamo
Boumediene considered challenges to the legality of detention, the issue at the heart of most of
the habeas challenges brought by Guantanamo detainees to date. However, there are also some
cases challenging the conditions under which a detainee is being held. These two categories of
challenges may involve different procedural routes and the application of different constitutional
rights. The extent to which Congress may limit the scope of challenges Guantanamo detainees
may bring may turn on the unresolved question of which constitutional rights apply to aliens
detained in territory abroad.
The Supreme Court has not directly addressed whether there must exist a judicial forum to
vindicate all constitutional rights. Justice Scalia has pointed out that there are particular cases, 213
such as political questions cases, where all constitutional review is in effect precluded. Other
commentators point to sovereign immunity and the ability of the government to limit the 214
remedies available to plaintiffs. However, the Court has, in cases involving particular rights, 215
generally found a requirement that effective judicial remedies must be available. Although the
extent of constitutional rights enjoyed by aliens outside the territory of the United States is
subject to continuing debate, the right of aliens within the United States to liberty except when
restricted in accordance with due process of law seems well established.
The DTA provides a means for challenging the validity of decisions by a CSRT that a detainee is
an enemy combatant. The D.C. Circuit Court of Appeals has not fully clarified the scope of
evidence it may review in reaching such a determination. The government has argued that
administrative law (applicable to reviews of agency determinations) supplies the appropriate
model for reviewing CSRT determinations, so that only the record of the CSRT proceedings is
subject to review, and that extrinsic evidence not already part of the record should not be subject 216
to discovery. The D.C. Circuit, however, rejected that view, holding that its review must 217
encompass all of the information a CSRT is authorized to obtain and consider.
212 See Boumediene, at 37-38, 54-56.
213 486 U.S. at 612-13 (Scalia, J., dissenting).
214 Bartlett v. Bowen, 816 F.2d 695, 719-720 (1987)(Bork, J., dissenting).
215 See e.g., First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S. 304
(1987)(holding that the Constitution mandates effective remedies for takings).
216 See Gov’t Br. Address. Pend. Prelim. Mots. at 49-51, Bismullah v. Gates, No. 06-1197 (D.C. Cir.).
217 Bismullah v. Gates, No. 06-1197 (D.C. Cir. July 20, 2007)(order on procedural motions).
The D.C. Circuit’s jurisdiction under the DTA also includes constitutional review of whether the
standards and procedures utilized in the military proceedings below were consistent with the
Constitution and laws of the United States. This seems to bring the scope of DTA proceedings
closer to that which would be available in habeas review. However, habeas challenges may also
permit challenges to detention not based solely on the adequacy of CSRT procedures. First, there
is no statutory requirement that all detainees receive a CSRT determination in order to be
detained, nor that detainees receive any kind of a hearing within any certain period of time after
their capture. This might have left some detainees without effective means to pursue a DTA
challenge. Moreover, it appears that some detainees who were determined by CSRTs to be
properly classified as enemy combatants have been released from Guantanamo without a new
determination, which may call into question the importance of the CSRT procedure as the primary
means for obtaining release and therefore, the sole focus of a collateral challenge. Detainees may
also be transferred or released based on the results of periodic reviews conducted by 218
Administrative Review Boards (ARBs) to determine whether the detainee is no longer a threat
or that it is in the interest of the United States and its allies to release the prisoner. There is no
opportunity under the DTA to appeal the result of an ARB finding. While new evidence
uncovered by this process may result in the convening of a new CSRT to determine continued 219
enemy combatant status, the DTA does not provide an avenue to appeal a decision not to 220
convene a new CSRT. The Supreme Court’s ruling that the constitutional writ of habeas
extends to Guantanamo suggests that detainees may seek habeas review in such cases.
Although it appears less common for challenges to prison conditions to be entertained under 221
habeas review, such cases have been heard by federal courts on habeas petitions. Prisoners in
federal prison may also ask a district court to address such complaints using their general 222
jurisdiction to consider claims that arise under the Constitution, by means of a writ of 223
mandamus. These writs, which are directed against government officials, have been used to
218 See DOD Press Release, “DoD Announces Draft Detainee Review Policy” (March 3, 2004), available at
http://www.defenselink.mil/releases/2004/nr20040303-0403.html; Memorandum from Deputy Secretary of Defense,
Revised Implementation of Administrative Review Procedures for Enemy Combatants Detained at U.S. Navy Base,
Guantanamo Bay, Cuba (July 14, 2006), available at http://www.defenselink.mil/news/Aug2006/
219 CSRT Implementing Directive, supra note 28, at encl. 10 (implementing Detainee Treatment Act provisions).
220 Boumediene at 2273-74 (stating that the ability to request a new CSRT to consider new evidence is an “insufficient
replacement for the factual review these detainees are entitled to receive through habeas corpus”).
221 “A motion pursuant to § 2241 generally challenges the execution of a federal prisoner’s sentence, including such
matters as the administration of parole, computation of a prisoner’s sentence by prison officials, prison disciplinary
actions, prison transfers, type of detention and prison conditions.” Jiminian v. Nash, 245 F.3d 144 (2d Cir. 2001). See,
e.g., Rickenbacker v. United States, 365 F. Supp. 2d 347 (E.D.N.Y. 2005) (challenging failure to provide drug and
psychiatric treatment in accordance with sentencing court’s recommendation).
222 28 U.S.C. § 1331. See Caldwell v. Miller, 790 F.2d 589 (7th Cir. 1986).
223 Russell Donaldson, Mandamus, under 28 U.S.C.A. §1361, To Obtain Change in Prison Condition or Release of
Federal Prisoner, 114 A.L.R. Fed. 225 (2005). Relief in mandamus is generally available where: (1) the plaintiff can
show a clear legal right to the performance of the requested action; (2) the duty of the official in question is clearly
defined and nondiscretionary; (3) there is no other adequate remedy available to the plaintiff; (4) there are other
separate jurisdictional grounds for the action. Id. at 1(a). A writ of mandamus may issue only where “the duty to be
performed is ministerial and the obligation to act peremptory, and clearly defined. The law must not only authorize the
demanded action, but require it; the duty must be clear and undisputable.” Ali v. Ashcroft, 350 F. Supp. 2d 28, 65
(D.D.C. 2004), quoting Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476, 1479 (D.C. Cir. 1995).
require those officials to act in compliance with constitutional requirements. Although these
challenges are often denied on the merits or on procedural grounds, cases have been brought 224225226
based on the First Amendment, Sixth Amendment, Eighth Amendment and various other 227
The Boumediene Court declined to discuss whether challenges to conditions of detention are 228
within the constitutional scope of the writ as it applies to Guantanamo detainees. A variety of
challenges has been raised by detainees in Guantanamo regarding conditions of their detention, 229
including such issues as whether prisoners can be held in solitary confinement when they can 230231
be transferred, or whether they can have contact with relatives. Although some of these were 232
brought as habeas corpus cases, Guantanamo detainees have also sought relief from the courts 233234
using the All Writs Act, principally to prevent their transfer to other countries without notice, 235
but for other reasons too. Use of the All Writs Act by a court is an extraordinary remedy, 236
generally not invoked if there is an alternative remedy available.
Under Title 28, U.S. code, a court conducting habeas review must “award the writ or issue an
order directing the respondent to show cause why the writ should not be granted, unless it appears 237
from the application that the detainee is not entitled to it.” The court can order either party to 238
expand the record by submitting additional information bearing on the petition. The court may
order hearings to assist it in determining the facts, and is authorized to “dispose of the matter as
224 See Long v. Parker, 390 F.2d. 816 (3rd Cir. 1968) (prisoner suit to obtain access to religious weekly newspaper
stated a valid cause of action worthy of a factual hearing).
225 Stover v. Carlson, 413 F. Supp. 718 (D. Conn. 1976) (ending federal prison practice of opening privileged
communications outside of prisoner’s presence).
226 Fullwood v. Clemmer, 206 F. Supp. 370 (D.D.C. 1962) (keeping prisoner in solitary confinement for more than two
years for minor disciplinary infractions violates the Eighth Amendment). It should be noted that where a prisoner has
not yet been convicted of a crime, a challenge to conditions of detentions may sound in Due Process rather than as an
Eighth Amendment challenge. Bell v. Wolfish, 441 U.S. 520 (1979).
227 See generally Donaldson, supra note 220.
228 See Boumediene, at 2274 (“In view of our holding we need not discuss the reach of the writ with respect to claims of
unlawful conditions of treatment or confinement.”).
229 Paul Shukovsky, Terrorism Suspect’s Suit Tells of U.S. Abuse: Documents in Guantanamo Case Describe Extreme
Isolation, SEATTLE POST-INTELLIGENCER, August 6, 2004, at A1.
230 Al-Anazi v. Bush, 370 F. Supp. 2d 188 (D.D.C. 2005).
231 Josh White, Lawyers Seek Improved Conditions for Suicidal Detainee, WASH. POST, November 5, 2005, at A8.
232 See, e.g., In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 480-81 (D.D.C. 2005)(rejecting claims on other
233 All Writs Act, 28 U.S.C. § 1651.
234 Belbach v. Bush, 520 F.3d 452, 456 (D.C. Cir. 2008) (holding the MCA leaves intact the presumptive jurisdiction of
federal courts to inquire into the constitutionality of a jurisdiction-stripping statute).
235 See El-Banna v. Bush, 2005 U.S. Dist. LEXIS 16880 (2005) (seeking preservation of records relating to treatment of
236 Al-Anazi v. Bush, 370 F. Supp. 2d 188, 196 (D.D.C. 2005).
237 28 U.S.C. § 2243.
238 Rules Governing § 2255 Cases, Rule 7, 28 U.S.C.A. foll. § 2255 (applicable to prisoners subject to sentence of a
law and justice require,”239 or in criminal cases, to vacate a sentence, grant a new trial, or order 240
that a prisoner be released.
By contrast, the DTA review procedures do not address the remedies available to detainees who
prevail in a challenge. Detainees who succeed in persuading a CSRT that they are not enemy
combatants do not have a right to release or even a right initially to be informed of the CSRT’s
decision. If the CSRT Director approves a finding that a detainee is no longer an enemy
combatant, the detainee may be held for as long as it takes the government to arrange for his
transfer to his home country or another country willing to provide asylum, during which time he 241
need not be told of the CSRT’s conclusion. According to one report of unclassified CSRT
records, in the event the CSRT Director disapproves of the finding, new CSRTs may be convened,
apparently without notifying or permitting the participation of the detainee, although the 242
government might present new evidence to the new panel.
The Supreme Court viewed the lack of an express power permitting the courts to order the release 243
of a detainee as a factor relevant to the DTA’s inadequacy as a substitute proceeding. In the
context of CSRT determinations, the government suggested to the Court that remand for new
CSRT proceedings would be the appropriate remedy for a determination that an error of law was 244
made or that new evidence must be considered. Whether such a remedy would be acceptable
probably depends on whether measures are taken to decrease the risk of error under the CSRT
procedures. It seems unlikely that a court would consider itself constitutionally obligated to
permit a detainee to enter the United States and be released into the United States unless the 245
detainee has previously formed some ties to the country.
In Boumediene, the Supreme Court held that the constitutional writ of habeas extended to persons
detained at Guantanamo, even though they are held outside the de jure sovereign territory of the
United States. Left unresolved in the Court’s discussion of the extraterritorial application of the
Constitution is the degree to which the writ of habeas and other constitutional protections applies
to aliens detained in foreign locations other than Guantanamo (e.g., at military facilities in
239 28 U.S.C. § 2243.
240 28 U.S.C. § 2255.
241 CSRT Implementing Directive, supra note 28, at encl. 1, para. I(9)-(10).
242 See Mark Denbeaux et al., No-Hearing Hearings, CSRT: The Modern Habeas Corpus?, at 37-40 (2006), available
at http://law.shu.edu/news/final_no_hearing_hearings_report.pdf. The named author is a professor at Seton Hall
University School of Law and serves as counsel to two Guantanamo detainees.
243 Boumediene at 2271.
244 See Gov’t Br. in Opp. to Pet. for Reh’g, Boumediene v. Bush, No. 16-1195 (U.S.).
245 See, e.g., Landon v. Plasencia, 459 U.S. 21, 32 (1981) (“This Court has long held that an alien seeking initial
admission to the United States requests a privilege and has no constitutional rights regarding his application, for the
power to admit or exclude aliens is a sovereign prerogative”); Shaughnessy v. United States ex rel. Mezei, 345 U.S.
206, 216 (1953) (finding that an inadmissible alien’s “right to enter the United States depends on the congressional
will, and courts cannot substitute their judgment for the legislative mandate”). On the other hand, whether or not a
habeas court would ever deem the release into the United States of an alien with no prior ties to the country as an
appropriate remedy to his unlawful detention abroad remains uncertain. At least one Guantanamo detainee has
requested a federal district court to order the government to parole him into the United States pending resolution of his
habeas claim. Husaifa Parhat’s Motion for Immediate Release on Parole into the Continental United States Pending
Final Judgment on His Habeas Petition, In re: Guantanamo Bay Litigation, No. 05-1509 (July 23, 2008).
Afghanistan and elsewhere, or at any undisclosed U.S. detention sites overseas). The Boumediene
Court indicated that it would take a functional approach in resolving such issues, taking into
account “objective factors and practical concerns” in deciding whether the writ extended to aliens
detained outside U.S. territory. Practical concerns mentioned in the majority’s opinion as relevant
to an assessment of the writ’s extraterritorial application include the degree and likely duration of
U.S. control over the location where the alien is held; the costs of holding the Suspension Clause
applicable in a given situation, including the expenditure of funds to permit habeas proceedings
and the likelihood that the proceedings would compromise or divert attention from a military
mission; and the possibility that adjudicating a habeas petition would cause friction with the host 246
government. The Boumediene Court declined to overrule the Court’s prior decision in
Eisentrager, in which it found that convicted enemy aliens held in post-WWII Germany were
precluded from seeking habeas relief. Whether enemy aliens are held in a territory that more
closely resembles post-WWII Germany than present-day Guantanamo may influence a reviewing
court’s assessment of whether the writ of habeas reaches them, as well as its assessment of the
merits of the underlying claims.
Whether detainees who are facing prosecution by a military commission may challenge the
jurisdiction of such tribunals prior to the completion of their trial remains unsettled, although the 247
district court has so far declined to enjoin military commissions. Supreme Court precedent
suggests that habeas corpus proceedings may be invoked to challenge the jurisdiction of a 248
military court even where habeas corpus has been suspended. Habeas may remain available to
defendants who can make a colorable claim not to be enemy combatants within the meaning of
the MCA, and therefore to have the right not to be subject to military trial at all, without 249
necessarily having to await a verdict or exhaust the appeals process. Interlocutory challenges
contesting whether the charges make out a valid violation of the law of war, for example, seem 250
less likely to be entertained on a habeas petition.
Whether Congress can limit the ability of detainees to bring cases challenging the conditions of
their detention may depend on the extent that such challenges are based on constitutional
considerations. If it is determined that no other procedure is available to vindicate constitutional
246 Boumediene at 2261-62.
247 See Khadr v. United States, No. 07-1405 (D.C. Cir. June 20, 2008); Hamdan v. Gates, No. 04-1519 (JR) (D.D.C.
July 18, 2008)(order denying injunction of military commission proceedings).
248 See ex parte Milligan, 71 U.S. (4 Wall.) 2, 115-16 (1866); cf. ex parte Quirin, 317 U.S. 1, 24-25 (1942)(dismissing
contention that presidential proclamation stripped Court of authority to review case, stating that “nothing in the
Proclamation precludes access to the courts for determining its applicability to the particular case”).
249 Schlesinger v. Councilman, 420 U.S. 738, 759 (1975)(finding judicial abstention is not appropriate in cases in which
individuals raise “ ‘substantial arguments denying the right of the military to try them at all,’ ” and in which the legal
challenge “turn[s] on the status of the persons as to whom the military asserted its power”); United States ex rel. Toth
v. Quarles, 350 U.S. 11, 76 (1955).
250 Cf. New v. Cohen, 129 F.3d 639, 643 (D.C. Cir. 1997).
rights, then it might be argued that the Congress’s limitation on the use of habeas corpus or other
avenues of redress by the detainees is an unconstitutional limitation.
The Constitution contains few requirements regarding the jurisdiction of the federal courts.
Article III, Section 1, of the Constitution provides that
The judicial Power of the United States, shall be vested in one supreme Court, and in such 251
inferior Courts as the Congress may from time to time ordain and establish. The Judges,
both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and
shall, at stated Times, receive for their Services, a Compensation, which shall not be
diminished during their Continuance in Office.
Although Article III provides for a Supreme Court headed by the Chief Justice of the United 252
States, nothing else about the Court’s structure and operation is set forth, leaving the size and
composition of the Court, as well as the specifics, if any, of the lower federal courts, to 253
Congress. Utilizing its power to establish inferior courts, Congress has also created the United 254255
States district courts, the courts of appeals for the thirteen circuits, and other federal 256
On its face, there is no limit on the power of Congress to make exceptions to or otherwise
regulate the Supreme Court’s appellate jurisdiction, to create inferior federal courts, or to specify
their jurisdiction. However, the same is true of the Constitution’s other grants of legislative
authority in Article I and elsewhere, which does not prevent the application of other constitutional
principles to those powers. “[T]he Constitution is filled with provisions that grant Congress or the
States specific power to legislate in certain areas,” Justice Black wrote for the Court in a different
context, but “these granted powers are always subject to the limitations that they may not be 257
exercised in a way that violates other specific provisions of the Constitution.” Justice Harlan
seems to have had the same thought in mind when he said that, with respect to Congress’s power
over jurisdiction of the federal courts, “what such exceptions and regulations should be it is for 258
Congress, in its wisdom, to establish, having of course due regard to all the Constitution.”
Thus, it is clear that while Congress has significant authority over administration of the judicial
system, it may not exercise its authority over the courts in a way that violates constitutional rights
251 The latter part of this quoted language dovetails with clause 9 of § 8 of Article I, under which Congress is
authorized “[t]o constitute tribunals inferior to the supreme Court.”
252 Although the position of Chief Justice is not specifically mandated, it is referenced in Article I, § 3, Cl. 6, in
connection with the procedure for the Senate impeachment trial of a President:
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they
shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice
shall preside: and no Person shall be convicted without Concurrence of two-thirds of the Members
253 By the Judiciary Act of 1789, it was established that the Court was to be composed of the Chief Justice and five
Associate Justices. The number of Justices was gradually increased to ten, until in 1869 the number was fixed at nine,
where it has remained to this day.
254 28 U.S.C. §§ 81-131, 132.
255 28 U.S.C. §§ 41, 43 (District of Columbia Circuit, First Circuit through Eleventh Circuit, Federal Circuit).
256 See, e.g., 28 U.S.C. §§ 151 (U.S. bankruptcy courts); 251 (U.S. Court of International Trade).
257 Williams v. Rhodes, 393 U.S. 23, 29 (1968).
258 United States v. Bitty, 208 U.S. 393, 399-400 (1908).
such as the Fifth Amendment due process clause or precepts of equal protection. For instance, 259
Congress could not limit access to the judicial system based on race or ethnicity. Nor, without
amendment of the Constitution, could Congress provide that the courts may take property while 260
denying a right to compensation under the takings clause. In general, the mere fact Congress is
exercising its authority over the courts does not serve to insulate such legislation from
It is also clear that Congress may not exercise its authority over the courts in a way that violates
precepts of separation of powers. The doctrine of separation of powers is not found in the text of
the Constitution, but has been discerned by courts, scholars, and others in the allocation of power
in the first three Articles; that is, the “legislative power” is vested in Congress, the “executive
power” is vested in the President, and the “judicial power” is vested in the Supreme Court and the
inferior federal courts. That interpretation is also consistent with the speeches and writings of the 261
framers. Beginning with Buckley v. Valeo, the Supreme Court has reemphasized separation of 262
powers as a vital element in American federal government. Justice Kennedy, in Boumediene
stressed his view that the writ of habeas corpus itself plays an important role in preserving the 263
operation of separation of powers principles.
The federal courts have long held that Congress may not act to denigrate the authority of the 264
judicial branch. In the 1782 decision in Hayburn’s Case, several Justices objected to a
congressional enactment that authorized the federal courts to hear claims for disability pensions
for veterans. The courts were to certify their decisions to the Secretary of War, who was
authorized either to award each pension or to refuse it if he determined the award was an
“imposition or mistaken.” The Justices on circuit contended that the law was unconstitutional
because the judicial power was committed to a separate department and because the subjecting of
a court’s opinion to revision or control by an officer of the executive or the legislative branch was
not authorized by the Constitution. Congress thereupon repealed the objectionable features of the
259 Laurence Tribe, Jurisdictional Gerrymandering: Zoning Disfavored Rights Out of the Federal Courts, 16 HARV.
C.R.- C.L.L. REV. 129, 142-43 (1981). For instance, segregation in courtrooms is unlawful and may not be enforced
through contempt citations for disobedience, Johnson v. Virginia, 373 U.S. 61 (1963), or through other means.
Treatment of parties to or witnesses in judicial actions based on their race is impermissible. Hamilton v. Alabama, 376
U.S. 650 (1964)(reversing contempt conviction of witness who refused to answer questions so long as prosecutor
addressed her by her first name).
260 The Fifth Amendment provides that no “private property [ ] be taken for public use without just compensation.”
261 424 U.S. 1, 109-43 (1976).
262 It is true that the Court has wavered between two approaches to cases raising separation-of-powers claims, using a
strict approach in some cases and a less rigid balancing approach in others. Nevertheless, the Court looks to a test that
evaluates whether the moving party, usually Congress, has “impermissibly undermine[d]” the power of another branch
or has “impermissibly aggrandize[d]” its own power at the expense of another branch; whether, that is, the moving
party has “disrupt[ed] the proper balance between the coordinate branches [by] preventing the [other] Branch from
accomplishing its constitutionally assigned functions.” Morrison v. Olson, 487 U.S. 654, 695 (1988). See also INS v.
Chadha, 462 U.S. 919 (1983); Bowsher v. Synar, 478 U.S. 714 (1986); Mistretta v. United States, 488 U.S. 361 (1989);
Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Airport Noise, 501 U.S. 252 (1991).
263 Boumediene at 2259( calling the writ of habeas corpus “an indispensable mechanism for monitoring the separation
264 2 U.S. (2 Dall.) 409 (1792). This case was not actually decided by the Supreme Court, but by several Justices on
statute.265 More recently, the doctrine of separation of powers has been applied to prevent
Congress from vesting jurisdiction over common-law bankruptcy claims in non-Article III 266
Allocation of court jurisdiction by Congress is complicated by the presence of state court systems
that can and in some cases do hold concurrent jurisdiction over cases involving questions of
federal statutory and constitutional law. Thus, the power of Congress over the federal courts is
really the power to determine how federal cases are to be allocated among state courts, federal
inferior courts, and the United States Supreme Court. Congress has significant authority to
determine which of these various courts will adjudicate such cases, and the method by which this
adjudication will occur. For most purposes, the exercise of this power is relatively
Congress passed a reporting requirement in the the National Defense Authorization Act for
FY2008 addressing detainees at Guantanamo. Several bills have been introduced to authorize and
regulate the detention of terrorist suspects, and others would amend the restrictions on detainees’
ability to seek habeas review. The Senate Judiciary Committee Subcommittee on Terrorism,
Technology and Homeland Security held a hearing December 11, 2007, entitled “The Legal
Rights of Guantanamo Detainees: What Are They, Should They Be Changed, and Is an End in
The National Defense Authorization Act for Fiscal Year 2008, P.L. 110-181 (H.R. 4986), section
1067 requires the President to submit a report that contains information about detainees at
Guantanamo Bay, Cuba, under the control of the Joint Task Force Guantanamo, who are or have
ever been classified as “enemy combatants.” The report is to identify the number of detainees
who are to be tried by military commission; the number of detainees to be released or transferred;
the number of detainees to be retained but not charged; and a “description of the actions required
to be undertaken, by the Secretary of Defense, possibly the heads of other Federal agencies, and
Congress, to ensure that detainees who are subject to an order calling for their release or transfer
from the Guantanamo Bay facility have, in fact, been released.”
The Senate reported a provision in two earlier versions of the FY2008 Defense authorization bill,
S. 1547 and S. 1548, that would have required the Secretary of Defense to convene a CSRT,
conducted in accordance with requirements similar to those that apply in military commissions, to
determine the status of each detainee who has been held for more than two years as an “unlawful
enemy combatant,” unless such detainee is undergoing trial or has been convicted by a military
commission. The provision adopted the definition of “unlawful enemy combatant” from the
MCA, with the addition of an alien who is not a lawful combatant and who has been a “knowing
265 Those principles remain vital. See, e.g., Chicago & S. Air Lines v. Waterman S. S. Corp., 333 U.S. 103, 113-14
(1948)(“Judgments within the powers vested in courts by the Judiciary Article of the Constitution may not lawfully be
revised, overturned or refused faith and credit by another Department of Government.”); Connor v. Johnson, 402 U.S.
266 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).
and active participant in an organization that engaged in hostilities against the United States.” The
provision would have prohibited the use of information acquired through coercion not amounting
to cruel, inhuman or degrading treatment (as defined in the DTA) unless the totality of the
circumstances renders the statement reliable and possessing sufficient probative value; the
interests of justice would best be served by admission of the statement into evidence; and the
Tribunal determines that the alleged coercion was incident to the lawful conduct of military
operations at the point of apprehension; or the statement was voluntary. The provision was
stripped out of the Senate version of the National Defense Authorization Act for Fiscal Year 2008
(H.R. 1585) prior to passage by the Senate.
The House-passed version of the National Defense Authorization Act for Fiscal Year 2009, H.R.
5658, contains a provision that would prevent the Department of Defense from implementing a
successor regulation to Army Regulation 190-8, Enemy Prisoners of War, Retained Personnel,
Civilian Internees and Other Detainees, until 60 days after Congress is notified, (§ 1064). The bill
would also declare military interrogation to be an inherently governmental function, prohibiting
the use of contract personnel to interrogate detainees, (§1077). The Senate is considering a similar
provision in its version of the FY2009 National Defense Authorization Act, S. 3001 and S. 3002.
Several bills have been introduced in both Houses of Congress to amend the habeas provisions in
the DTA. H.R. 1189, the Habeas Corpus Preservation Act, would provide that the MCA is to be
construed to avoid any effect on the right of any U.S. resident to habeas corpus. Some of these
would also amend the definition of “enemy combatant” in the MCA and revise other aspects of
The Military Commissions Habeas Corpus Restoration Act of 2007, H.R. 267, would repeal
subsection (e) of 28 U.S.C. § 2241. The bill would add a new Section 1632 to Title 28 providing
that no court has jurisdiction to hear cases against the United States or its agents by aliens
detained as enemy combatants except for the reviews provided in the DTA and habeas corpus
petitions. H.R. 2826 would amend 28 U.S.C. § 2241(e) to allow habeas corpus actions and
requests for injunctive relief against transfer, except in cases of detainees held in an active war
zone where the Armed Forces are implementing AR 190-8 or any successor regulation. However,
habeas challenges related to the decisions of CSRT would be limited to the United States Court of
Appeals for the District of Columbia Circuit under the same restrictions in scope that currently
apply to appeals of CSRT decisions under the DTA. The bill would also amend 10 U.S.C. §
950j(b) to restore jurisdiction for habeas corpus, but not for other actions, related to the
prosecution, trial or judgment of a military commission.
H.R. 2710 would repeal 28 U.S.C. § 2241(e) to restore jurisdiction over all cases related to the
detention of persons as “enemy combatants,” but would prohibit challenges other than habeas
corpus actions in cases relating to the prosecution, trial, or judgment of a military commission.
H.R. 2543, the Military Commissions Revision Act of 2007, would revise the definition of
unlawful enemy combatant to cover only a “person who has engaged in, attempted, or conspired
to engage in acts of armed hostilities or terrorism against the United States or its co-belligerents,
and who is not a lawful enemy combatant.” Under the bill, CSRT decisions would no longer be
dispositive for purposes of determining the jurisdiction of military commissions. Statements
obtained by a degree of coercion less than torture would be admissible in a military commission
only if the military judge finds that “the totality of the circumstances indicates that the statement
possesses probative value to a reasonable person; the interests of justice would best be served by
admitting the statement into evidence; and the interrogation methods used to obtain the statement
do not amount to cruel, inhuman or degrading treatment.” Habeas corpus jurisdiction would be
restored for alien enemy combatants after two years since the date of detention if no criminal
charges are pending against the detainee.
S. 185/H.R. 1416, the Habeas Corpus Restoration Act, would repeal subsection (e) of 28 U.S.C. §
2241, but would amend 10 U.S.C. § 950j so that court jurisdiction would continue to be
unavailable for detainees seeking to challenge military commissions, except through the limited
procedures under the DTA, as amended, and “as otherwise provided in [chapter 47a of title 10,
U.S. Code] or in section 2241 of title 28 or any other habeas corpus provision.” S. 185 was 267
reported favorably by the Senate Judiciary Committee without amendment. S. 576, the
Restoring the Constitution Act of 2007, and its companion bill, H.R. 1415, would amend the
definition of “unlawful enemy combatant” in the MCA, 10 U.S.C. § 948a, to mean an individual
who is not a lawful combatant who “directly participates in hostilities in a zone of active combat
against the United States,” or who “planned, authorized, committed, or intentionally aided the
terrorist acts on the United States of September 11, 2001” or harbored such a person. A status
determination by a CSRT or other tribunal would no longer be dispositive of status under 10
U.S.C. § 948d. The bills would also expressly restrict the definition of “unlawful enemy
combatant” for use in designating individuals as eligible for trial by military commission. They
would repeal 28 U.S.C. § 2241(e), but limit other causes of action related to the prosecution, trial,
and decision of a military commission. DTA provisions related to the limited review of status
determinations and final decisions of military commissions would be eliminated, and appeals of
military commissions would be routed to the Court of Appeals for the Armed Forces. H.R. 1415
would expand the scope of that review to include questions of fact. With respect to the Geneva
Conventions, the bills would eliminate the MCA provision excluding their invocation as a “source
of rights” by defendants (10 U.S.C. § 948b(g)), replacing it with a provision that military
commission rules determined to be inconsistent with the Geneva Conventions are to have no
effect. They would also add a reference to the effect that the President’s authority to interpret the
Geneva Conventions is subject to congressional oversight and judicial review. Finally, the bills
would provide for expedited challenges to the MCA in the D.C. district court. (Provisions
amending the War Crimes Act or military commission procedures are not covered in this report.)
S. 1876 would modify the MCA definition of “enemy combatant” to mean persons other than
lawful combatants who have engaged in hostilities against the United States or who have
purposefully and materially supported hostilities against the United States (other than hostilities
engaged in as a lawful enemy combatant). It would also exclude from the definition U.S. citizens
and persons admitted for permanent residence in the United States, as well as persons taken into
custody in the United States. The bill would provide for jurisdiction in the United States District
Court for the District of Columbia to hear habeas petitions by persons determined by the United
States to have been properly detained as an enemy combatant or persons detained for more than
90 days without such a determination. The court would also have jurisdiction to hear petitions by
persons who have been tried by military commissions after they have exhausted the appeals
process. Provisions of S. 1876 that address restrictions on detention and liability are described in
the next section.
267 S.Rept. 110-90.
A version of the Habeas Corpus Restoration Act was offered as an amendment to the National 268
Defense Authorization Act, H.R. 1585 (Senate amendment no. 2022), but was not adopted.
(After President Bush vetoed H.R. 1585, Congress passed a virtually identical bill, H.R. 4846,
which became P.L. 110-181).
H.R. 6247, the “Boumediene Jurisdiction Correction Act,” would provide “exclusive original
jurisdiction” to hear habeas petitions by persons held under military authority at Guantanamo,
apparently including U.S. military personnel, to the “courts established under the Uniform Code
of Military Justice and operating in that part of Cuba.” Because courts-martial are the only courts
under the UCMJ that operate at the naval base, and these are not standing courts that would be
capable of accepting such petitions, perhaps the bill should be interpreted to refer the civilian
court created by the UCMJ with jurisdiction over Guantanamo. Under this interpretation, all
habeas petitions by persons detained at Guantanamo would have to be referred to the Court of
Appeals for the Armed Forces (CAAF). Otherwise, it seems habeas petitions for prisoners at
Guantanamo would have to be referred to a commanding officer with court-martial convening
authority there, which seems unlikely to provide the sort of independent collateral review that the
Boumediene Court seemed to view as constitutionally required.
H.R. 6705/S. 3401, the Enemy Combatant Detention Review Act of 2008, would repeal
subsection (e) of 28 U.S.C. § 2241. It would grant the U.S. District Court for the District of
Columbia exclusive jurisdiction over, and make it the exclusive venue for consideration of, all
habeas corpus applications by or on behalf of enemy combatants held at Guantanamo who are
not U.S. citizens or aliens who have been admitted for permanent residence in the United States.
All such applications would be consolidated before the Chief Judge of the District Court or a
designee for consolidated proceedings and determinations on common questions of fact or law. A
habeas corpus application could be filed to challenge the legality of the continued detention of a
covered individual, but not any other claims relating to his detention, transfer, treatment, trial, or
conditions of confinement, or any other action against the United States. Applications of persons
subject to military commission proceedings would be stayed until those proceedings have been
completed. The proposed legislation would also establish procedures for habeas corpus review of
detainees, including the scope of permitted discovery, protection of national security information,
the allowance of video hearings so that a detainee may participate from Guantanamo, and the
admission of evidence (including hearsay).
S. 1249 and H.R. 2212 would require the President to close the detention facilities at Guantanamo
Bay and either transfer the detainees to the United States for trial (by military proceeding or
Article III court) or for detention as enemy combatants as may be authorized by Congress; to
transfer detainees to an appropriate international tribunal operating under U.N. auspices; to
transfer detainees to their country of citizenship or a different country for further legal process,
where adequate assurances are given that the individual will not be subject to torture or cruel,
inhuman, or degrading treatment; or to release them from any further detention.
S. 1876, the “National Security with Justice Act of 2007,” would limit extraterritorial detention
and rendition, modify the definition of “unlawful enemy combatant” for purposes of military
268 S.Amdt. 2022 to S.Amdt. 2011 to H.R. 1585, 153 CONG. REC. S11559 (daily ed. July 19, 2007).
commissions, and extend statutory habeas corpus to detainees at Guantanamo. The bill defines
“aggrieved person” as an individual who is detained or subjected to rendition overseas by a U.S.
officer or agent, except as authorized, excluding any individual who is an international terrorist (a
non-U.S. person who “engages in international terrorism or activities in preparation therefor,” and
any person (apparently including U.S. persons) who knowingly aids, abets or conspires with such
a non-U.S. person in the commission of a terrorist act or activity in preparation of a terrorist act).
An aggrieved person would have the right to sue the head of the agency or department
responsible for his or her unlawful detention or rendition for damages, including punitive
Extraterritorial rendition and detention would generally be permitted only with proper
authorization by order of the Foreign Intelligence Surveillance Court (FISC), a court set up to
authorize electronic surveillance of agents of foreign powers in the United States. Certain types of
renditions and detentions appear to be excluded from these general requirements, including those
of persons detained by the United States in Guantanamo on the act’s date of enactment who are
transferred to a foreign legal jurisdiction, as well as the rendition or detention of individuals
detained or transferred by the U.S. Armed Forces under circumstances governed by, and in
accordance with, the Geneva Conventions. Otherwise, extraterritorial detention would require the
authorization of the President or the Director of National Intelligence based on a certification that
the failure to detain that individual “will result in a risk of imminent death or imminent serious
bodily injury to any individual or imminent damage to or destruction of any United States
facility” or the factual basis exists to demonstrate the individual is an international terrorist and
there is reason to believe that the detention or rendition of such person is important to the national
security of the United States. An application for detention must be submitted to the FISC within
H.R. 6705/S. 3401 would expressly authorize the detention of persons who have been engaged in
hostilities or who have purposefully and materially supported hostilities against the United States
or its co-belligerents on behalf of the Taliban, Al Qaeda, or associated forces. It would bar a court
from releasing a person into the United States who has been designated as an “enemy combatant”
by a CSRT (other than a U.S. citizen or an alien admitted into the U.S. for permanent residence)
and also make such a person ineligible for a entry visa or any immigration status, subject to the
waiver of the President. If a court were to grant a detainee’s habeas application and order his
release, he would be placed in the custody of the Secretary of Homeland Security for transfer to
the detainee’s country of citizenship or a third country.
The Administration’s policy of detaining wartime captives and suspected terrorists at the
Guantanamo Bay Naval Station has raised a host of novel legal questions regarding, among other
matters, the relative powers of the President and Congress to fight terrorism, as well as the power
of the courts to review the actions of the political branches. The DTA was Congress’s first effort
to impose limits on the President’s conduct of the Global War on Terrorism and to prescribe a
limited role for the courts. The Supreme Court’s decision striking the DTA provision that
attempted to eliminate the courts’ habeas jurisdiction may be seen as an indication that the Court
will continue to play a role in determining the ultimate fate of the detainees at Guantanamo.
However, the Court did not foreclose all options available to Congress to streamline habeas
proceedings involving detainees at Guantanamo or elsewhere in connection with terrorism.
Instead, it indicated that the permissibility of such measures will be weighed in the context of
relevant circumstances and exigencies.
As a general matter, the courts have not accepted the view that the President has inherent
constitutional authority to detain those he suspects may be involved in international terrorism.
Rather, the courts have looked to the language of the AUMF and other legislation to determine
the contours of presidential power. The Supreme Court has interpreted the AUMF with the
assumption that Congress intended for the President to pursue the conflict in accordance with
traditional law-of-war principles, and has upheld the detention of a “narrow category” of persons
who fit the traditional definition of “enemy combatant” under the law of war. Other courts have
been willing to accept a broader definition of “enemy combatant” to permit the detention of
individuals who were not captured in circumstances suggesting their direct participation in
hostilities against the United States, but a plurality of the Supreme Court warned that a novel
interpretation of the scope of the law of war might cause their understanding of permissible
executive action to unravel. Consequently, Congress may be called upon to consider legislation to
support the full range of authority asserted by the executive branch in connection with the
GWOT. In the event the Court finds that the detentions in question are fully supported by
statutory authorization, whether on the basis of existing law or new enactments, the key issue is
likely to be whether the detentions comport with due process of law under the Constitution.
Jennifer K. Elsea Kenneth R. Thomas
Legislative Attorney Legislative Attorney
firstname.lastname@example.org, 7-5466 email@example.com, 7-5006
Michael John Garcia