Order Code RS22173
June 22, 2005
CRS Report for Congress
Received through the CRS Web
Detainees at Guantánamo Bay
Jennifer K. Elsea
Legislative Attorney
American Law Division
Summary
After the U.S. Supreme Court held that U.S. courts have jurisdiction to hear legal
challenges on behalf of more than 500 persons detained at the U.S. Naval Station in
Guantanamo Bay, Cuba in connection with the war against terrorism, the Pentagon
established administrative hearings, called “Combatant Status Review Tribunals”
(CSRTs), to allow the detainees to contest their status as enemy combatants. This report
provides an overview of the CSRT procedures and summarizes court cases related to the
detentions. The relevant Supreme Court rulings are discussed in CRS Report RS21884,
The Supreme Court and Detainees in the War on Terrorism: Summary and Analysis.
This report will be updated as events warrant.
In Rasul v. Bush,124 S.Ct. 2686 (2004), 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 decision reversed the holding of the Court of Appeals for the D.C.
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 have filed
more than a dozen petitions on behalf of some 60 detainees in the District Court for the
District of Columbia, where judges have reached opposing conclusions as to whether the
detainees have any enforceable rights to challenge their treatment and detention. Fifteen
of the detainees have been determined by the President to be subject to his military order
(“MO”) of November 13, 2001,1 making them eligible for trial by military commission.2
However, military commissions have been temporarily halted pending the results of legal
actions in the D.C. Circuit.
1 Order on Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism,
November 13, 2001, 66 Fed.Reg. 57,833 (2000)(hereinafter “MO” or “military order”).
2 For an analysis of the military commission rules, 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.
Congressional Research Service ˜ The Library of Congress

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The White House determined in February 2002 that Taliban detainees are covered
under the Geneva Conventions,3 while Al Qaeda detainees are not,4 but that none of the
detainees qualifies for the status of prisoner of war (POW) under the Conventions. The
Bush Administration has deemed all of the detainees to be “unlawful enemy combatants,”
who may, according to Administration officials, be held indefinitely without trial or even
were they eventually acquitted by a military tribunal. However, the detainees at
Guantanamo Bay have been allowed to meet with representatives of the International
Committee of the Red Cross (ICRC) and diplomatic representatives of their States of
nationality. An unknown number of detainees is reported to be held in Afghanistan and
other locations abroad. It is unclear whether these detainees will have a right to challenge
their detention under the Court’s decision in Rasul.
Combatant Status Review Tribunals. In response to Supreme Court decisions
in 2004 related to ‘enemy combatants,’5 the Pentagon established procedures for
Combatant Status Review Tribunals, based on the procedures the Army uses to determine
POW status during traditional wars.6 According to the Department of Defense (DoD),
“any detainee who is determined not to be an enemy combatant will be transferred to their
country of citizenship or other disposition consistent with domestic and international
obligations and U.S. foreign policy.”7 CSRTs have been completed for all detainees, and
have confirmed the status of 520 enemy combatants. Of the 38 detainees determined not
to be enemy combatants, 23 have been transferred to their home States. Presumably, any
new detainees that might be transported to Guantanamo Bay will go before a CSRT.
The tribunals are administrative rather than adversarial, but each detainee has an
opportunity to 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 supported hostilities in aid of enemy armed
3 The two most relevant are the Geneva Convention Relative to the Treatment of Prisoners of
War, August 12, 1949, 6 U.S.T. 3317 (hereinafter “GPW”); Geneva Convention Relative to the
Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516 (hereinafter “GC”).
4 White House Memorandum, “Humane Treatment of al Qaeda and Taliban Detainees” (Feb. 7,
2002), available at [http://www.washingtonpost.com/wp-srv/nation/documents/020702bush.pdf].
5 For an analysis of relevant decisions, see The Supreme Court and Detainees in the War on
Terrorism: Summary and Analysis, CRS Report RS21884.
6 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. For more information, see Treatment of
“Battlefield Detainees” in the War on Terrorism, CRS Report RL31367.
7 See DoD Press Release, “Combatant Status Review Tribunal Order Issued” (June 7, 2004),
available at [http://www.defenselink.mil/releases/2004/nr20040707-0992.html].

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forces.” Each detainee is represented by a military officer (not a member of the Judge
Advocate General Corps) and may elect to participate in the hearing or remain silent.
The CSRTs are not bound by the rules of evidence that would apply in court, and the
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 designation, to the tribunal. Unclassified summaries of relevant evidence may
be provided to the detainee. The detainee’s personal representative may view classified
information and comment on it to the tribunal to aid in its determination but does not act
as an advocate for the detainee. 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 established for that purpose,
the detainee will be informed of that decision upon finalization of transportation
arrangements (or earlier, if the task force commander deems it appropriate). The rules do
not give a timetable for informing detainees in the event that the tribunal has decided to
retain their enemy combatant designations.
In March 2002, the Pentagon announced plans to create a separate process for
periodically reviewing the status of detainees.8 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. The detainee’s State of nationality may be allowed, national
security concerns permitting, to submit information on behalf of its national.
Court Challenges to the Detention Policy
While it is now clear 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 remains unclear. The Justice Department argues that
Rasul v. Bush merely decided the issue of jurisdiction, but that the 1950 Supreme Court
decision in Johnson v. Eisentrager9 remains applicable to limit the relief to which the
detainees are entitled. While one district judge from the D.C. Circuit agreed,10 others
have not, holding that detainees have the right to the assistance of an attorney11 and that
they have a right to be treated as POWs until a “competent tribunal” decides otherwise.12
The following sections summarize the three most important decisions, which are all on
appeal to the D.C. Circuit Court of Appeals and are expected eventually to reach the
Supreme Court.
8 See DoD Press Release, “DoD Announces Draft Detainee Review Policy” (March 3, 2004),
available at [http://www.defenselink.mil/releases/2004/nr20040303-0403.html].
9 339 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] jurisdiction”).
10 Khalid v. Bush, 355 F.Supp.2d 311 (D. D.C. 2005).
11 Al Odah v. United States, No. CIV.A. 02-828(CKK) (D. D.C. Oct. 20, 2004).
12 Hamdan v. Rumsfeld, 344 F.Supp.2d 152 (D. D.C. 2004).

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Khalid v. Bush.13 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 Administration that Congress, in its
Authorization to Use Military Force (AUMF),14 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
captured and detained pursuant to the President’s military order,15 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 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 of the law of war, finding instead that the AUMF
contains no geographical boundaries,16 and authorizes the President to exercise his war
power wherever enemy combatants are found. The circumstances behind the off-
battlefield captures did, however, apparently preclude the petitioners from claiming their
detentions violate the Geneva Conventions.17 Other treaties put forth by the petitioners
were found to be unavailing because of their non-self-executing nature.18 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 aliens.”19 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.”
In re Guantanamo Detainee Cases.20 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
13 355 F.Supp.2d 311 (D. D.C. 2005).
14 Authorization for Use of Military Force (“the AUMF”), P.L. 107-40, 115 Stat. 224 (2001).
15 Although the MO states that it authorizes detention as well as trial by military commissions,
only fifteen of the detainees have been formally designated as subject to the MO.
16 Khalid at 320.
17 Id. at 326.
18 Id. at 327. It may be argued that the habeas statute itself (28 U.S.C. § 2241), which authorizes
petitions alleging detention in violation of any treaty of the United States, provides a means for
private enforcement.
19 Id. at 330 (citations omitted).
20 355 F.Supp.2d 443 (D. D.C. 2005).

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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 process is due in light of the
government’s significant interest in safeguarding national security.21 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 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 protect her source.”22 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 be authorized by the AUMF.23
The D.C. Circuit Court of Appeals is considering the government’s appeal with
respect to the holding that the detainees have enforceable rights under the Constitution
and international law, as well as appeals by some detainees with respect to other aspects
of Judge Green’s decision. Briefs are due June 28, 2005, with oral arguments to be
scheduled at a later date. The detainees’ appeal of the Khalid decision, supra, is to be
heard on the same day.
Hamdan v. Rumsfeld.24 Salim Ahmed Hamdan, who was captured in
Afghanistan and is alleged to have worked for Osama Bin Laden as a body guard and
21 Id. at 465 (citing Hamdi v. Rumsfeld).
22 Id. at 475 (internal citations omitted).
23 Id. at 476.
24 344 F.Supp.2d 152 (D. D.C. 2004).

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driver, brought this challenge to the lawfulness of the Secretary of Defense’s plan to try
him for alleged war crimes before a military commission convened pursuant to the
President’s military order. Hamdan’s attorney objected to the military commission rules
and procedures, which he argued were inconsistent with the UCMJ and Hamdan’s right
to be treated as a prisoner of war under the Geneva Conventions. U.S. District Judge
Robertson agreed, finding that the Geneva Conventions apply to the whole of the conflict
in Afghanistan, including under their protections all persons detained in connection with
the hostilities there.25 Accordingly, he ruled, Hamdan was 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). He did
not accept the government’s argument that, there being no doubt that Hamdan is not
entitled to POW status, GPW art. 5 does not require a tribunal to determine Hamdan’s
status; nor did he accept the government’s position that the CSRT procedures would
satisfy any such requirement.
With respect to the President’s military order establishing military commissions, the
judge disagreed with the government’s position that the President has inherent authority
in his role as Commander-in-Chief of the Armed Forces to create such tribunals. The
judge found congressional authority for military commissions to be limited to “offenders
or offenses that by statute or by the law of war may be tried by military commissions.”26
Noting that the law of war includes the Geneva Conventions, which permits the
punishment of prisoners of war “only if the sentence has been pronounced by the same
courts according to the same procedure as in the case of members of the armed forces of
the Detaining Power,”27 Judge Robertson found no congressional authority for Hamdan’s
trial under the DoD’s rules for military commissions. These rules, he found, are fatally
inconsistent with the UCMJ (contrary to UCMJ art. 36, 10 U.S.C. § 836) because they
give military authorities the power to exclude the accused from hearings and deny him
access to evidence presented against him.28 Accordingly, the judge denied the Secretary
of Defense’s motion to dismiss and enjoined the government from trying Hamdan under
the military commission rules as presently established.
The government’s appeal is now pending expedited review in the D.C. Circuit as
docket 04-5393. Oral arguments were heard on April 7, 2005.
25 Id. at 161 (rejecting the government’s position that the military is engaged in two separate
conflicts in Afghanistan, respectively, against the Taliban and against Al Qaeda).
26 The court stated:
If the President does have inherent power in this area, it is quite limited. Congress has
the power to amend those limits and could do so tomorrow. Were the President to act
outside the limits now set for military commissions by Article 21[UCMJ,10 U.S.C.
§ 821], however, his actions would fall into the most restricted category of cases
identified by Justice Jackson in his concurring opinion in Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. 579, 637, 72 S.Ct. 863, 96 L.Ed. 1153 (1952), in which “the
President takes measures incompatible with the expressed or implied will of
Congress,” and in which the President's power is “at its lowest ebb.”
Id. at 159-160.
27 GPW art. 102.
28 344 F.Supp.2d at 166.

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