Order Code RL33180
CRS Report for Congress
Received through the CRS Web
Guantanamo Detainees: Habeas Corpus
Challenges in Federal Court
December 7, 2005
Jennifer K. Elsea and Kenneth Thomas
Legislative Attorneys
American Law Division
Congressional Research Service ˜ The Library of Congress

Guantanamo Detainees: Habeas Corpus Challenges in
Federal Court
Summary
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 more than 500 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
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 conflicting
conclusions as to whether the detainees have any enforceable rights to challenge their
treatment and detention.
In one, Hamdan v. Rumsfeld, a federal judge ruled that a petitioner must be
treated as a prisoner of war until a competent tribunal has decided otherwise, in
accordance with the Geneva Conventions, and that the procedural rules the
Department of Defense set up to govern military commissions are inconsistent with
the Uniform Code of Military Justice (UCMJ), and therefore, the commissions lack
jurisdiction. The government temporarily suspended the operation of military
tribunals until the D.C. Circuit Court of Appeals reversed the district court’s opinion,
and the Supreme Court granted certiorari, where the case is pending as of the date
of this report.
The Senate approved an amendment introduced by Senator Graham to S. 1042,
the National Defense Authorization Act for FY2006, that would require the Secretary
of Defense to report to Congress how it determines whether individual detainees are
properly detained as enemy combatants, and to give to the District of Columbia
Circuit Court of Appeals exclusive jurisdiction to hear appeals of those
determinations, but also to foreclose the detainees’ ability to petition for habeas
corpus
in any court. If enacted, the appeals provision of the Graham Amendment
may allow detainees to raise many of the claims they might have raised in petitioning
for a writ of habeas corpus, but may exclude some detainees from seeking any relief.
The bill could end litigation at the district court, but may raise constitutional issues
with respect to the Suspension Clause (U.S. Const. Art. 1, § 9, cl. 2), whether it
amounts to an impermissible “court-stripping” measure to deprive the Supreme Court
of jurisdiction over matters of law entrusted to it by the Constitution, and whether
such constitutionally sensitive issues can be avoided in light of available alternative
procedures.
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 Graham Amendment and analyzes how it might affect detainee-related litigation
in federal court. It will be updated as events warrant.

Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Rasul v. Bush . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Combatant Status Review Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Court Challenges to the Detention Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Khalid v. Bush . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
In re Guantanamo Detainee Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Hamdan v. Rumsfeld . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
The Graham Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Appeals of Status Determinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Appeals of Military Commission Decisions . . . . . . . . . . . . . . . . . . . . 14
Constitutional Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
The Suspension of Habeas Corpus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Limiting Court Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
The Fact and Length of Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Conditions of Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Congressional Authority Over Federal Courts . . . . . . . . . . . . . . . . . . . . . . . 21
Separation of Powers Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Eliminating Federal Court Jurisdiction Where There is No State
Court Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Guantanamo Detainees: Habeas Corpus
Challenges in Federal Court
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 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 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 conflicting conclusions as to whether the
detainees have any enforceable rights to challenge their treatment and detention.
The Supreme Court granted certiorari in Hamdan v. Rumsfeld (05-184) to
decide whether Congress authorized the President to try suspected terrorists by
military commissions and whether detainees can assert rights under the 1949 Geneva
Convention in an action for a writ of habeas corpus challenging the legality of their
detention by the Executive branch. The Senate approved an amendment introduced
by Senator Graham to S. 1042, the National Defense Authorization Act for FY2006,
that would require the Secretary of Defense to submit to the Armed Services and
Judiciary Committees the procedural rules for determining detainees’ status,1 which
would be required to preclude evidence determined by the board or tribunal to have
been obtained by undue coercion (S.Amdt. 2516 to S. 1042, “the Graham
Amendment”).2 The Graham amendment would, if enacted, give exclusive
jurisdiction to the D.C. Circuit Court of Appeals to hear appeals of those
determinations as well as final verdicts of military commissions, but would foreclose
the detainees’ ability to petition for habeas corpus in any court,3 effectively reversing
the Rasul decision.
1 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.
2 151 CONG. REC. S12667 (daily ed. Nov. 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.
Nov. 14, 2005).
3 S.Amdt. 2515 to S. 1042, printed at 151 CONG. REC. S12655 (daily ed. Nov. 10,
2005)(“Graham Amendment”), later amended by S.Amdt. 2524, 151 CONG. REC. S12771
(daily ed. Nov. 14, 2005).

CRS-2
This report provides background, including an overview of the Rasul decision
and of the CSRT procedures established to comply with it, summarizes court cases
related to the detentions and the use of military commissions, and summarizes the
Graham Amendment and analyzes how it might affect detainee-related litigation in
federal courts.
Background
The White House determined in February 2002 that Taliban detainees are
covered under the Geneva Conventions,4 while Al Qaeda detainees are not,5 but that
none of the detainees qualifies for the status of prisoner of war (POW).6 The
Administration has deemed all of them to be “unlawful enemy combatants,” who
may be held without trial or even if they are acquitted by a military tribunal. Fifteen
of the detainees have been determined by the President to be subject to his military
order (“MO”) of November 13, 2001,7 making them eligible for trial by military
commission.8
Rasul v. Bush9
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 are 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. Eisentrager (339 U.S. 763), “‘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. §
4 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”); Geneva
Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949,
6 U.S.T. 3516 (hereinafter “GC”).
5 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].
6 For more history and analysis, see CRS Report RL31367, Treatment of ‘Battlefield
Detainees’ in the War on Terrorism
, by Jennifer K. Elsea.
7 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”).
8 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
, by
Jennifer Elsea.
9 124 S. Ct. 2686 (2004).

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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 United States.”10
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 times
imprisoned outside the United States.”11 The present 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.”
10 Rasul at 2694. When Eisentrager was decided in 1950, the Rasul majority found, the
“respective jurisdictions” of federal district courts was 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 of cases recognized in
Braden v. 30th 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. 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 and Detainees in the War on Terrorism:
Summary and Analysis
, by Jennifer K. Elsea.
11 Rasul at 2693 (citing Eisentrager at 777).

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As to the petitioners’ claims based on statutes other than the habeas statute,
which included the federal question statute12 as well as the Alien Tort Statute,13 the
Court applied the same reasoning to conclude that nothing precluded the detainees
from bringing such claims before a federal court.14
The Court’s opinion leaves many questions unanswered. It is unclear which of
the Eisentrager (or Rasul) factors would control under a different set of facts.15 The
opinion does not address whether persons detained by the U.S. military abroad in
locations where the United States does not exercise full jurisdiction and control
would have access to U.S. courts. 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 leaves 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, an issue which is
discussed more fully below.
Combatant Status Review Tribunals
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 the Army uses to determine POW status during
traditional wars.16 Detainees who are determined not to be enemy combatants are to
12 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.”).
13 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.”).
14 Rasul at 2698 (“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”).
15 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 at 2693 (emphasis original).
16 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
(continued...)

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be transferred to their country of citizenship or otherwise dealt with “consistent with
domestic and international obligations and U.S. foreign policy.”17 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 witnesses18 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 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, the detainee will be informed of that decision upon
finalization of transportation arrangements (or earlier, if the task force commander
deems it appropriate).
In March 2002, the Pentagon announced plans to create a separate process for
periodically reviewing the status of detainees.19 The process, similar to the CSRT
16 (...continued)
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.
17 See DoD Press Release, “Combatant Status Review Tribunal Order Issued” (June 7,
2004), available at [http://www.defenselink.mil/releases/2004/nr20040707-0992.html].
18 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. 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. 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.
19 See DoD Press Release, “DoD Announces Draft Detainee Review Policy” (March 3,
(continued...)

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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 the Supreme Court clarified that the detainees have at least statutory
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.
Eisentrager
20 remains applicable to limit the relief to which the detainees are entitled.
While one district judge from the D.C. Circuit agreed,21 others have not, holding for
example that detainees have the right to the assistance of an attorney.22 One judge
found that a detainee has the right to be treated as a POW until a “competent
tribunal” decides otherwise,23 but the appellate court reversed. The following
sections summarize the three most important decisions as they make their way
through the D.C. Circuit Court of Appeals and, it is expected, to the Supreme Court,
though their prospects at the high court may depend on congressional action in the
interim.
Khalid v. Bush24
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),25 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
19 (...continued)
2004), available at [http://www.defenselink.mil/releases/2004/nr20040303-0403.html].
20 339 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”).
21 Khalid v. Bush, 355 F.Supp.2d 311 (D. D.C. 2005).
22 Al Odah v. United States, 346 F.Supp.2d (D. D.C. 2004).
23 Hamdan v. Rumsfeld, 344 F.Supp.2d 152 (D. D.C. 2004), rev’d 415 F.3d 33 (D.C. Cir.),
cert. granted 2005 U.S. LEXIS 8222 (Nov. 7, 2005).
24 355 F.Supp.2d 311 (D. D.C. 2005).
25 Authorization for Use of Military Force (“the AUMF”), P.L. 107-40, 115 Stat. 224 (2001).

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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,26 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.”27
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,28 and gives the President virtually
unlimited authority to exercise his war power wherever enemy combatants are
found.29 The circumstances behind the off-battlefield captures did, however,
apparently preclude the petitioners from claiming their detentions violate the Geneva
Conventions.30 Other treaties put forth by the petitioners were found to be
unavailing because of their non-self-executing nature.31
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.”32 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.”
26 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.
27 355 F.Supp.2d at 314.
28 Id. at 320.
29 Id. at 318.
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.
30 Id. at 326.
31 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, provides a means for private
enforcement. See Eisentrager at 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).
32 Id. at 330 (citations omitted).

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In re Guantanamo Detainee Cases33
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 process is due in light of
the government’s significant interest in safeguarding national security.34 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.”35
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
33 355 F.Supp.2d 443 (D. D.C. 2005).
34 Id. at 465 (citing Hamdi v. Rumsfeld).
35 Id. at 475 (internal citations omitted).

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involvement in terrorist activities, would violate due process even if such detention
were found to be authorized by the AUMF.36
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. Oral arguments were heard September
8, 2005 on this case as well as the detainees’ appeal of the Khalid decision, supra.
Hamdan v. Rumsfeld37
Salim Ahmed Hamdan, who was captured in Afghanistan and is alleged to have
worked for Osama Bin Laden as a body guard and 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 UCMJ38 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.39 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). The D.C. Circuit Court of Appeals, in an opinion written by Judge Randolph,
reversed that finding, ruling that the Geneva Conventions are not judicially
enforceable,40 and that in any event, the military commission would qualify as a
“competent tribunal” within the meaning of U.S. Army regulations implementing the
Conventions.41 Judge Williams wrote a concurring opinion, agreeing with the
government’s conception of the conflict with Al Qaeda as separate from the conflict
with the Taliban, but construing Common Article 3 to apply 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.
With respect to the President’s military order establishing military commissions,
the district court judge had found no inherent authority in the President as
Commander-in-Chief of the Armed Forces to create such tribunals, and that existing
statutory authority for military commissions is limited. Interpreting the statute in
light of the Geneva Conventions, which permits the punishment of prisoners of war
36 Id. at 476.
37 344 F.Supp.2d 152 (D. D.C. 2004), rev’d 415 F.3d 33 (D.C. Cir. 2005), cert. granted 2005
U.S. LEXIS 8222 (Nov. 7, 2005).
38 10 U.S.C. §§ 801 et seq.
39 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).
40 415 F.3d at 39.
41 Id. at 43-44.

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“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,”42
Judge Robertson found no congressional authority for Hamdan’s trial under the
DoD’s rules for military commissions. He found these rules to be 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.43 The Circuit Court reversed, opining that
Congress did not mean that all of the UCMJ procedural rules for courts-martial
should apply to military commissions. Instead, the panel interpreted art. 36 to mean
that military commission rules have only to be consistent with those articles of the
UCMJ that refer specifically to military commissions. The Supreme Court has
agreed to review the case.44
The Graham Amendment
The Senate approved an amendment to its Defense Authorization bill (S. 1042,
passed by roll call vote November 15, 2005), to require the Defense Department to
submit to the Armed Services and Judiciary Committees the procedural rules for
determining detainees’ status,45 which would be required to preclude evidence
determined by the board or tribunal to have been obtained by undue coercion
(S.Amdt. 2516 to S. 1042, “the Graham Amendment”).46 The amendment would
neither authorize nor require a formal status determination, but it would require that
the Judiciary and Armed Services Committees be notified 30 days prior to the
implementation of any changes to the rules. It does not contain similar requirements
with respect to the rules for military commissions.
42 GPW art. 102.
43 344 F.Supp.2d at 166.
44 Hamdan v. Rumsfeld, et al., No. 05-184. The questions presented are:
1. Whether the military commission established by the President to try petitioner and
others similarly situated for alleged war crimes in the “war on terror” is duly authorized
under Congress’s Authorization for the Use of Military Force (AUMF), Pub. L. No.
107-40, 115 Stat. 224; the Uniform Code of Military Justice (UCMJ); or the inherent
powers of the President?
2.
Whether petitioner and others similarly situated can obtain judicial enforcement from
an Article III court of rights protected under the1949 Geneva Convention in an action for
a writ of habeas corpus challenging the legality of their detention by the Executive
branch?
45 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.
46 151 CONG. REC. S12667 (daily ed. Nov. 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.
Nov. 14, 2005).

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Judicial Review
The most controversial portion of the Graham Amendment would amend 28
U.S.C. § 2241 to eliminate the federal courts’ statutory jurisdiction over habeas
claims by aliens detained by the Department of Defense at Guantanamo Bay. Section
1092(d) of S. 1042 would add a new subsection (e) to 28 U.S.C. § 2241:
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 outside
the United States (as that term is defined in section 101(a)(38) of the
Immigration and Naturalization Act (8 U.S.C. 1101(a)(38)) who is detained by
the Department of Defense at Guantanamo Bay, Cuba.47
Section 1092 would eliminate all federal court jurisdiction over habeas cases on
behalf of the detainees, possibly including cases pending at the bill’s enactment.48
Any alien in DoD custody at Guantanamo Bay for any reason other than enemy
combatant status would likewise be precluded from seeking habeas relief. The
amendment would not foreclose or limit any legal avenue other than habeas corpus
that might be available to the detainees to seek relief. Suits for damages or petitions
seeking injunctive relief, for example, would not be affected. In addition, the
amendment would provide for limited appeals of status determinations made
pursuant to the DoD procedures for Combatant Status Review Tribunals (CSRTs)49
and appeals of final decisions of military commissions.50
Appeals of Status Determinations. The D.C. Circuit Court of Appeals
would have exclusive jurisdiction to hear appeals of any “decision of a Designated
Civilian Official . . . that an alien is properly detained as an enemy combatant.” The
scope of “propriety of detention” is somewhat ambiguous. While habeas review
would ordinarily be limited to whether a detainee has been determined by fair process
to fit the criteria for classification as an enemy combatant, appellate review could
potentially be broader, possibly encompassing determinations as to whether the
detainee poses a security risk or possesses valuable intelligence information such that
his detention is proper to accomplish stated DoD policy aims. However, the scope
47 28 U.S.C. § 2441 refers to federal courts only. The Graham Amendment could be read
to preclude habeas actions in state courts as well, or, if interpreted in the context of the
section as amended, could be read as limited to federal courts.
48 Subsection (e)(1) states that “(e)xcept as provided in paragraph (2), this section shall take
effect on the day after the enactment of this Act.” Paragraph (e)(2) provides that the
paragraphs of subsection (d) that provide for appellate review of CSRT and final decisions
of military commissions are effective (presumably, on the date of enactment) with respect
to claims whose review is governed by those paragraphs that are pending on or after the date
of enactment. The disposition of pending habeas cases whose review would not be
governed by the appeals provisions remains unclear, including interlocutory claims related
to the proceedings of military commissions, claims related to treatment and living
conditions, or claims by detainees who have been determined to be “no longer enemy
combatants” but remain in DoD custody.
49 S. 1042 § 1092(d)(2)(engrossed as passed by the Senate).
50 Id. § 1092(d)(3).

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of review by the appellate court is expressly limited to the consideration of two types
of claims.
Section 1092(C)(i) of S. 1042 would provide for the consideration of whether
the determination applied the “correct standards” and complied with applicable DoD
procedures for CSRTs (including whether it is supported by the preponderance of the
evidence, but allowing a rebuttable presumption in favor of the government). It is not
clear what the “correct standards” might encompass; the language might be intended
to refer to standards prescribed within the CSRT rules, but it could be interpreted
more broadly to cover such considerations as whether they are necessary and
appropriate to ensure the AUMF is properly implemented and its scope not exceeded.
Section 1092(C)(ii) would allow appeals based on claims that “subjecting an
alien enemy combatant to such standards and procedures is [in]consistent with the
Constitution and laws of the United States.” The provision does not specifically
make reference to treaties of the United States or the international law of armed
conflict, but the appellate court might treat these as incorporated into U.S. law by the
Supremacy Clause51 or the UCMJ.52 Appellate jurisdiction would cease upon the
detainee’s transfer from DoD custody. If a detainee is transferred to the custody of
another U.S. agency, jurisdiction under the habeas statute would no longer be
constrained by the amendment.
The Graham Amendment does not elaborate on the role of the “Designated
Civilian Official” whose decision may be appealed. As the CSRTs were initially
established,53 the final approval of CSRT decisions was the responsibility of the
51 U.S. CONST. art VI, cl. 2 provides that “This Constitution, and the Laws of the United
States which shall be made in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme Law of the Land.” The
language of the Graham Amendment, by including “the Constitution and the laws of the
United States” and omitting reference to treaties, may be intended specifically to exclude
treaties. On the other hand, statutes and regulations are generally interpreted with an
assumption that they are intended to comply with international legal obligations. See
Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (Marshall, J.) (“an
act of Congress ought never to be construed to violate the law of nations if any other
possible construction remains....”).
52 10 U.S.C. §§ 801 et seq. Offenses against the law of war are incorporated in articles 18
and 21 (10 U.S.C. §§ 818 and 821). See ex parte Quirin, 317 U.S. 1, 29 (1942).
Congress has incorporated by reference, as within the jurisdiction of military
commissions, all offenses which are defined as such by the law of war and which may
constitutionally be included within that jurisdiction. Congress has the choice of
crystallizing in permanent form and in minute detail every offense against the law of war,
or of adopting the system of common law applied by the military tribunals so far as it
should be recognized and deemed applicable by the courts. It chose the latter course.
53 Memorandum, Assistant Secretary of Defense Paul Wolfowitz for the Secretary of the
Navy, Order Establishing Combatant Status Review Tribunals (June 7, 2004), available at
[http://www.defenselink.mil/news/Jul2004/d20040707review.pdf](last visited Nov. 12,
2005).

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convening authority,54 and there was no mention of a “designated civilian official,”
although this might be a reference to the role of the Secretary of the Navy, to whom
the order establishing CSRTs was addressed.55 The procedures established by
Secretary England refer to the position of Director, CSRT, who appears to be the
convening authority for the tribunals and the official whose final approval is required
(currently a military officer).56 At any rate, it does not appear that the Graham
Amendment would give the D.C. Circuit Court of Appeals jurisdiction to review
CSRT determinations that have not been made or approved by a civilian official who
had been appointed with the advice and consent of the Senate, but a court might
interpret the provision more broadly in order to give the provision effect.
The restriction on the use of evidence obtained through undue coercion to be
incorporated into the CSRT rules would apply prospectively only, and would be
unavailable as a means to challenge determinations with respect to detainees who
have already been determined to be enemy combatants. The limitation on the use of
such evidence would apply to the administrative review boards each detainee is to
receive annually, but it appears that these decisions are not subject to review pursuant
to the appeals provision. On the other hand, the amendment does not define
“combatant status review tribunal,” and the provision for jurisdiction over an appeal
of any “decision . . . that an alien is properly detained as an enemy combatant” could
be read broadly to include the decisions related to the annual administrative reviews
or simply to any decision regarding whether to release or transfer a detainee, which
might not depend entirely upon the status determination.57 The court could also
54 Rear Adm. James M. McGarrah currently serves as convening authority for the CSRTs,
which have made determinations for all current detainees.
55 See id. The Department of Defense appointed the Secretary of the Navy, Gordon England,
to be the designated civilian official to operate and oversee the annual administrative review
boards set up to determine the continued detention of persons affirmed by CSRTs to be
enemy combatants at Guantanamo Bay Naval Base, Cuba. See Press Release, Department
of Defense, Navy Secretary to Oversee Enemy Combatant Admin Review (June 23, 2004),
available at [http://www.defenselink.mil/releases/2004/nr20040623-0932.html](last visited
Nov. 12, 2005).
56 See Memorandum, Secretary of the Navy, Implementation of Combatant Status Review
Tribunal Procedures for Enemy Combatants detained at Guantanamo Bay Naval Station,
Cuba, July 29, 2004, available at
[http://www.defenselink.mil/news/Jul2004/d20040730comb.pdf](last visited Nov. 12,
2005).
57 According to DoD, it has released 180 detainees and released 76 detainees to foreign
governments. See DoD Press Release, “Detainee Transfer Announced” (Nov. 5, 2005),
available at [http://www.defenselink.mil/releases/2005/nr20051105-5073.html]. Not all of
them have been released pursuant to determinations by CSRTs. See DoD Fact Sheet,
Guantanamo Detainees, available at
[http://www.defenselink.mil/news/Apr2004/d20040406gua.pdf] (describing detainee review
process to determine whether detainees pose a threat).
An elaborate process is in place to identify enemy combatants to be held at Guantanamo,
assess the threat they pose to the U.S. and the international community, and regularly
review all available information to make sure that their continued detention is necessary.
Detainees have been released when it is believed they no longer pose a significant threat,
(continued...)

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address the admissibility of evidence procured through coercion under the
constitutional basis for review to determine whether due process requires that CSRTs
exclude such evidence.
Appeals of Military Commission Decisions. The Graham Amendment
would also provide for an appeal to the Court of Appeals for the District of Columbia
Circuit of final decisions rendered pursuant to Military Commission Order No. 1
(“MCO No. 1”) or successor order. The court would be required to review capital
cases or cases in which the alien was sentenced to a term of imprisonment for 10
years or more, but it could hear other cases at its discretion. “Final decision” is not
defined; presumably final verdicts and sentences would qualify, while interlocutory
challenges to the proceedings would not. However, federal appellate courts
sometimes treat an order that is not a complete disposition of a case as “final” and
therefore ripe for review. The final decision of the military commission is defined
in MCO No. 1 to be the result of the post-trial review and approval of the military
commission’s finding by the President, or the Secretary of Defense, if the President
delegates the authority to him.
The scope of review would be limited to considering whether the decision
applied the correct standards and was consistent with MCO No. 1, and whether
“subjecting an alien enemy combatant to such order is consistent with the
Constitution and laws of the United States.” Again, the “laws of the United States”
may include more than just statutes; judicial precedent, treaties, and consistent
regulations may also provide sources for formulating these standards. In particular,
appellate review of military commission procedures and decisions would seem to
require at least some interpretation of the international law of war and relevant
treaties.
Constitutional Considerations
The Graham Amendment could be interpreted as congressional ratification of
the President’s detainee policies, including the implementation of CSRTs and
military commissions for persons deemed to be enemy combatants. If enacted, it may
put to rest many of the constitutional separation of powers issues surrounding the
President’s conduct of the war on terrorism, fleshing out somewhat the scope of
authority granted in the AUMF. Or it may prevent such questions from reaching the
Supreme Court. On the other hand, it may give rise to even more litigation
concerning its interpretation and whether it violates the Constitution’s Suspension
Clause or exceeds Congress's authority to regulate the jurisdiction of federal courts.
57 (...continued)
and they have been transferred to the custody of their governments when those
governments are prepared to assume responsibility for ensuring that the detainees will not
pose a threat to the United States.

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The Suspension of Habeas Corpus
The Writ of Habeas Corpus (ad subjiciendum), also known as the Great Writ,
has its origin in Fourteenth Century England.58 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 of fundamental constitutional rights.59 A court reviewing a petition for
habeas corpus does not 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 released.60 Minor
irregularities in trial procedures that do not amount to violations of fundamental
constitutional rights are generally to be addressed on direct appeal.61
Given the emphasis the Rasul Court placed on the distinction between the
statutory and constitutional entitlement to habeas corpus, it would seem reasonable
to suppose that Congress might easily revoke by statute what it had earlier granted
without offending either the Court or the Constitution. However, the special status
accorded the Writ by the Suspension Clause of the Constitution complicates matters.
Article I, § 9, cl. 2, 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.” If the Graham Amendment amounts to a suspension of the writ of
habeas corpus, the Supreme Court could take up the question of whether a “case of
rebellion or invasion” exists and whether the federal courts’ consideration of the
detainees’ petitions actually endangers the public safety to such a degree that
suspension of the writ is warranted. If, on the other hand, the amendment represents
the mere regulation of procedures for seeking relief, or eliminates a statutory right not
guaranteed by the Constitution, then the Supreme Court may rule itself ineligible to
review detainee cases.
While the federal courts’ power to review petitions under habeas corpus has
historically relied on statute,62 it has been explained that the Constitution obligates
Congress to provide “efficient means by which [the Writ] should receive life and
58 For a general background and description of related writs, see 39 Am. Jur. 2d. Habeas
Corpus
§ 1 (1999).
59 See generally Sen. Doc. 108-17 at 848 et seq.
60 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.”).
61 39 Am. Jur. 2d. Habeas Corpus § 27 (1999).
62 Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807).

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activity.”63 The Court presumes that “the Suspension Clause of the Constitution
refers to the writ as it exists today, rather than as it existed in 1789.”64 Consequently,
the Court may be unwilling to permit Congress to eliminate habeas rights it
previously granted, at least to the extent that no other avenue of relief is available.65
Congress's authority to control the courts’ jurisdiction over habeas cases was
tested in the aftermath of the Civil War. As part of its Reconstruction efforts,
Congress broadened the scope of the Writ to provide for review of convictions of
state courts and to give the Supreme Court appellate jurisdiction in habeas corpus
cases. Prior to that time, the Supreme Court could review habeas decisions only by
issuing an original writ of habeas corpus combined with certiorari. However, when
the Court’s new appellate review appeared to threaten the legitimacy of much of the
Reconstruction legislation, including a statute that allowed military trials of civilians
in formerly Confederate states, Congress hastily revoked the Supreme Court’s
appellate jurisdiction over habeas cases. The Supreme Court upheld Congress's
authority to revoke its appellate jurisdiction, even though it had already heard
arguments in the case of McCardle, a civilian held for trial by a military commission
in Mississippi. Upon dismissing McCardle’s appeal, however, the Court remarked:
Counsel seem to have supposed, if effect be given to the repealing act in
question, that the whole appellate power of the court, in cases of habeas corpus,
is denied. But this is an error. The act of 1868 does not except from that
jurisdiction any cases but appeals from Circuit Courts under the act of 1867. It
does not affect the jurisdiction which was previously exercised.66
Shortly after the McCardle case, the Supreme Court, in agreeing to review the
case of another civilian held by military authority, confirmed that it could indeed
continue to issue original writs of habeas corpus and certiorari notwithstanding the
repeal of the 1867 law.67 Repeal of those parts of the Judiciary Act of 1789 that
conferred power on the Supreme Court to review habeas cases was not to be found
by implication. Congress made no effort to further diminish the Court’s habeas
jurisdiction, leaving open the question whether such an effort would amount to a
violation of the Suspension Clause.
The Supreme Court had an opportunity to revisit the question after Congress in
1996 passed the Antiterrorism and Effective Death Penalty Act (AEDPA), part of
which restricted successive habeas petitions by prisoners in state custody. Until
1867, prisoners held pursuant to convictions in state courts were not eligible to seek
63 Id. at 94.
64 Felker v. Tupin, 518 U.S. 663 (1996)(citing Swain v. Pressley, 430 U.S. 372 (1977)).
65 Cf. id. (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).
66 Ex parte McCardle, 74 U.S. (7 Wall.) 506, 515 (1868).
67 Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1869).

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federal habeas relief,68 yet it remains unclear whether Congress is free to revoke such
jurisdiction without effecting a suspension of the Writ. In Felker v. Turpin,69 the
Supreme Court followed its holding in ex parte Yerger to interpret a section of the
AEDPA preventing its review of orders denying leave to file a second habeas
petition as leaving intact the Supreme Court’s power to consider original petitions
for habeas relief, apparently avoiding an unconstitutional “suspension” of the Writ,
or at least avoiding the need for the Court to determine whether the Suspension
Clause was in fact implicated.
The Graham Amendment appears to be less equivocal with respect to the rights
of a narrowly defined class of persons to petition for habeas relief: no jurisdiction,
whether original or appellate, will lie in federal court for petitions on behalf of aliens
detained by the military at Guantanamo Bay. If the amendment is enacted, the Court
may find it necessary to resolve the question of the Suspension Clause’s effect on
Congress's authority to regulate the jurisdiction of federal courts, particularly the
Supreme Court.
Limiting Court Jurisdiction
At the brink of the Suspension Clause issue is the question whether the relief
available under habeas may be available under other procedures. In addition, the
question arises as to whether the Graham Amendment, by limiting certain procedural
routes to challenge the Guantanamo detainees’ detention and treatment, would limit
the vindication of constitutional rights and unconstitutionally usurp the role of the
federal courts. A definitive interpretation of the effect of the Graham Amendment is
difficult, however, since many of the constitutional and procedural issues raised by
the detentions at Guantanamo remain unresolved.
Generally, it would appear that there are two categories of cases that are likely
to be brought by detainees at Guantanamo: cases challenging the fact or length of a
detainee’s incarceration, and cases challenging the conditions under which a detainee
is being held. While there may be some overlap, these two categories may involve
different procedural routes and the application of different constitutional rights.
The Fact and Length of Detention. As noted above, the Supreme Court
has found that the Guantanamo detainees presently have a statutory right to petition
a federal district court for a writ of habeas corpus70 based on claims that they are held
68 See Ex parte Bollman, 8 U.S. (4 Cranch) 75, 99 (1807)(interpreting Section 14 of the
Judiciary Act of 1789, which established the jurisdiction of federal courts over habeas
corpus
and other matters, to withhold from state prisoners access to the federal writ of
habeas corpus). For an analysis of why the interpretation may have been in error, see Eric
M. Freedman, Milestones in Habeas Corpus: Part I Just Because John Marshall Said It,
Doesn't Make it So: Ex Parte Bollman and the Illusory Prohibition on the Federal Writ of
Habeas Corpus for State Prisoners in the Judiciary Act of 1789
, 51 ALA. L. REV. 531
(2000).
69 518 U.S. 651 (1996).
70 28 U.S.C. §§ 2241(a), (c)(3).

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"in custody in violation of the Constitution or laws or treaties of the United States."71
In general, writs of habeas corpus are available as a means of challenging the fact
or length of a detention or incarceration.72 Thus, the Graham Amendment would
appear to be intended to prohibit detainees from utilizing this particular statutory
procedure to bring cases into court.73
Thus, the question arises as to whether there were other alternate procedural
routes by which detainees could bring suits challenging the fact or length of their
detention. It would appear that a significant number of these constitutional issues
could be addressed by courts even if habeas corpus was found to be unavailable.74
For instance, under the Graham Amendment, the United States Court of Appeals
for the District of Columbia Circuit would appear to have exclusive jurisdiction75 to
determine the validity of decisions by either a CSRT that a detainee is an enemy
combatant, and would also have exclusive jurisdiction to review military commission
decisions regarding these detainees. As noted, the court’s jurisdiction does provide
for constitutional review of whether the standards and procedures utilized in the
proceedings below were consistent with the Constitution and laws of the United
States.
In addition, the Graham Amendment does not appear to limit other procedural
routes which might be available to the Guantanamo detainees. As will be discussed
below, there are a number of extraordinary remedies beside habeas that can arise
when constitutional rights are at issue, but statutory remedies are found to be
inadequate.76
71 Rasul v. Bush, 124 S. Ct. 2686 (2004).
72 Although it appears less common for challenges to prison conditions to be entertained
under this procedural route, such cases can be brought. “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. N.Y. 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).
73 As discussed above, there may be limits to the extent to which the writ of habeas corpus
may be suspended.
74 See discussion, supra, accompanying notes 36-67.
75 The Graham Amendment does not indicate whether the Supreme Court would have
jurisdiction to review decisions by the Court of Appeals on a writ of certiorari, but various
other statutes that similarly provide exclusive jurisdiction to Court of Appeals have not been
interpreted to preclude Supreme Court review. See, e.g , 28 U.S.C § 1295 (2005) (providing
the United States Court of Appeals for the Federal Circuit exclusive jurisdiction over
appeals from a variety of specialized courts). Senator Graham has indicated that the
decisions of the D.C. Circuit Court under the amendment would be subject to Supreme
Court review. Lindsey Graham, Rules for Our War, WASH. POST, Dec. 6, 2005 at A29.
76 As is discussed later, the federal courts have general jurisdiction to consider allegations
of violations of constitutional law, and, even absent statutory authority, have allowed cases
(continued...)

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Conditions of Detention. The Graham Amendment does not specifically
address the issue of court review of the conditions of detention. However, a variety
of challenges have been raised by detainees in Guantanamo regarding conditions of
their detention, including such issues as whether prisoners can be held in solitary
confinement77 when they can be transferred,78 or whether they can have contact with
relatives.79 Statements regarding the Graham Amendment seem to indicate that its
sponsors anticipated that the amendment, by eliminating habeas corpus petitions,
would limit the ability of detainees to seek redress regarding the conditions of their
detention.80

Although cases challenging conditions in Guantanamo have been brought under
writs of habeas corpus,81 depending on the nature of the complaint, other procedural
routes may be available. For instance, Guantanamo detainees have sought relief from
the courts using the All Writs Act,82 principally to prevent their transfer to other
countries without notice,83 but for other reasons too.84 It is significant that use of the
All Writs Act by a court is an extraordinary remedy, generally not invoked if there
is an alternative remedy available.85 If the courts find that habeas corpus relief is not
available because of the Graham Amendment, then the application of the All Writs
Act may be more likely.
76 (...continued)
referred to as Bivens actions to be brought to challenge unconstitutional behavior by
government officials. See discussion accompanying notes 84-92, infra. Or, in a limited
number of cases, federal prisoners have sought to use the remedy of mandamus to secure
release from confinement. See discussion accompanying notes 93-96, infra. While it is not
clear whether these remedies are available to detainees in Guantanamo, the Graham
Amendment does not on its face preclude detainees from filing such actions.
77 Paul Shukovsky, Terrorism Suspect's Suit Tells of U.S. Abuse: Documents in Guantanamo
Case Describe Extreme Isolation,
Seattle Post-Intelligencer A1 (August 6, 2004).
78 Al-Anazi v. Bush, 370 F. Supp. 2d 188 (D.C. 2005).
79 Josh White, Lawyers Seek Improved Conditions for Suicidal Detainee, The Washington
Post A8 (November 5, 2005).
80 See 151 Cong. Rec. S12752-54 (daily ed. November 14, 2005)(statement of Senator
Lindsay Graham).
81 See, e.g., In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 480-81 (D.D.C.
2005)(rejecting claims on other grounds).
82 All Writs Act, 28 U.S.C. § 1651.
83 Al-Anazi v. Bush, 370 F. Supp. 2d 188 (D.D.C. 2005)(denying a preliminary injunction
to provide their counsel with 30-days' notice of any proposed transfer of detainees to any
place outside the U.S.); Almurbati v. Bush, 366 F. Supp. 2d 72 (D.D.C. 2005)(same); Abdah
v. Bush, 2005 U.S. Dist. LEXIS 4144 (D.D.C. 2005)(Thirteen Yemeni nationals were
entitled to a TRO preventing the government from transferring them to the custody of
another government).
84 See El-Banna v. Bush, 2005 U.S. Dist. LEXIS 16880 (2005) (seeking preservation of
records relating to treatment of detainees).
85 Al-Anazi v. Bush, 370 F. Supp. 2d 188, 196 (D.D.C. 2005).

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Prisoners in federal prison, acting under a district court’s general jurisdiction to
consider claims arising under the Constitution,86 have sometimes sought writs of
mandamus87 to obtain changes in prison conditions.88 These writs, which are directed
against government officials, have been used to 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 based on the
First Amendment,89 Sixth Amendment,90 Eighth Amendment91 and various other
grounds.92 Although the use of this writ by the Guantanamo detainees does not appear
to be well established,93 deprivation of the right of habeas corpus to these detainees
by the Graham Amendment may make application of this remedy more likely.94
Finally, it is possible that the detainees in Guantanamo could bring a Bivens
action for damages against relevant government officials.95 In Bivens v. Six Unknown
Federal Narcotics Agents
,96 the Supreme Court has held that suits can be brought
against federal government officials directly under the Constitution for violations of
86 28 U.S.C. § 1331. See Caldwell v. Miller, 790 F.2d 589 (7th Cir. 1986).
87 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).
88 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.C.D.C. 2004), quoting Shoshone-Bannock Tribes v. Reno, 56
F.3d 1476, 1479 (D.C. Cir. 1995).
89 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).
90 Stover v. Carlson, 413 F. Supp. 718 (D. Conn. 1976) (ending federal prison practice of
opening privileged communications outside of prisoner’s presence).
91 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).
92 See generally Russell Donaldson, supra note 57.
93 See Ali v. Ashcroft, 350 F. Supp. 2d 28, 65 (D. D.C. 2004) (rejecting argument that the
Hostage Act requires the President to seek release of plaintiff from custody of the Saudi
Arabian government).
94 Housley v. U.S., 1992 U.S. App. LEXIS 26368 (9th Cir.).
95 See John Boston, Daniel E. Manville, Prisoners’ Self–Help Litigation Manual (3rd Ed.
1995). There is also limited authority to indicate that a plaintiff may seek an injunction as
part of a Bivens claim. Sheptin v. United States, 2000 U.S. Dist. LEXIS 12999, *6 (N.D.
Ill. Sept. 1, 2000).
96 403 U.S. 388 (1971).

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the Fourth Amendment. The Court has also explicitly provided that such suits are
available to federal prisoners alleging cruel and unusual punishment in violation of
the Eighth Amendment.97 Again, this remedy is most likely to be available where
Congress has not provided an adequate remedy for constitutional violations.98
However, it should be noted that the number of successful Bivens actions appears to
be relatively small, and state actors in certain roles, such as federal agency
enforcement officials, may have absolute immunity from damage suits.
Congressional Authority Over Federal Courts
As noted, sponsors of the Graham Amendment have indicated that the intent of
the language which passed the Senate was, in part, to limit the ability of detainees to
bring cases challenging the conditions of their detention. To the extent that such
challenges are based on constitutional considerations, however, the question arises
as to whether Congress can impose such limitations. This issue might not be reached
by the courts, however, if it is determined that alternative procedures to challenge an
alleged constitutional violation are available. If it is determined that no alternative
procedure is available to vindicate constitutional rights, however, or such alternatives
are later foreclosed, then it might be argued that the Congress’s limitation on the use
of habeas corpus 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 inferior Courts as the Congress may from time to time ordain and
establish.99 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 States,100 nothing else about its structure and its operation is specified,
97 Carlson v. Green, 446 U.S. 14 (1980)(Court allowed a Bivens action against federal
prison officials for failing to provide adequate medical treatment).
98 In Carlson, the Supreme Court held that a Bivens-type action cannot be brought in
situation: where defendants (1) demonstrate special factors counseling hesitation in the
absence of affirmative action by Congress, or (2) show that Congress has provided a
sufficient alternate remedy.
99 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.”
100 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
(continued...)

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so the size and composition of the Court, as well as the specifics, if any, of the lower
federal courts, is left to Congress.101 Utilizing its power to establish inferior courts,
Congress has also created the United States district courts,102 the courts of appeals for
the thirteen circuits,103 and other federal courts.104
On its face, there is no limit on the power of Congress to make exceptions to
and regulate the Supreme Court’s appellate jurisdiction, to create inferior federal
courts and to specify their jurisdiction. However, that is true of the Constitution’s
other grants of legislative authority in Article I and elsewhere, which do 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 exercised
in a way that violates other specific provisions of the Constitution.”105 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 Congress, in its wisdom, to establish, having of course
due regard to all the Constitution.”106
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 such as the Fifth Amendment due process clause or
precepts of equal protection. For instance, Congress could not limit access to the
judicial system based on race or ethnicity.107 Nor, without amendment of the
Constitution, could Congress provide that the courts may take property while denying
100 (...continued)
convicted without Concurrence of two-thirds of the Members present.
101 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.
102 28 U.S.C. §§ 81-131, 132.
103 28 U.S.C. §§ 41, 43 (District of Columbia Circuit, First Circuit through Eleventh Circuit,
Federal Circuit).
104 See, e.g., 28 U.S.C. §§ 151 (U.S. bankruptcy courts); 251 (U.S. Court of International
Trade).
105 Williams v. Rhodes, 393 U.S. 23, 29 (1968).
106 United States v. Bitty, 208 U.S. 393, 399-400 (1908).
107 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).

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a right to compensation under the takings clause.108 In general, the mere fact
Congress is exercising its authority over the courts does not serve to insulate such
legislation from constitutional scrutiny.
Separation of Powers Issues
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, i.e., 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 framers. Beginning with Buckley v. Valeo,109 the Supreme Court has
reemphasized separation of powers as a vital element in American federal
government.110
The federal courts have long held that Congress may not act to denigrate the
authority of the judicial branch. In the 1782 decision in Hayburn’s Case,111 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 statute.112 More recently, the doctrine of separation of
108 The Fifth Amendment provides that no “private property [ ] be taken for public use
without just compensation.”
109 424 U.S. 1, 109-43 (1976).
110 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).
111 2 Dall. (2 U.S.) 409 (1792). This case was not actually decided by the Supreme Court,
but by several Justices on circuit.
112 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
(continued...)

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powers has been applied to prevent Congress from vesting jurisdiction over
common-law bankruptcy claims in non-Article III courts.113
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 will occur.
For most purposes, the exercise of this power is relatively noncontroversial.
As regards the instant proposal, however, there appears to be little chance of
state courts exercising jurisdiction over the detainees in Guantanamo Bay.114
Consequently, the issue here appears to be, not where the cases of the Guantanamo
detainees will be heard, but whether such cases will be heard in any court, whether
state or federal. Although the Supreme Court has not specifically addressed the issue
of the withdrawal of jurisdiction from all courts to consider challenges to the actions
of government officials, it would seem likely that such restrictions would be
constitutionally suspect.
Eliminating Federal Court Jurisdiction Where There is No
State Court Review

A series of lower federal court decisions seems to indicate that in most cases,
some forum must be provided for the vindication of constitutional rights, whether in
federal or state courts. For instance, in 1946, a series of Supreme Court decisions115
under the Fair Labor Standards Act of 1938116 exposed employers to $5 billion
dollars in damages, and the United States itself was threatened with liability for over
112 (...continued)
and credit by another Department of Government.”); Connor v. Johnson, 402 U.S. 690
(1971).
113 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).
114 The Graham Amendment provides that “[n]o 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 outside of the United States.” The argument could be made, however, that
this language is intended to be limited to the statutory provision it is amending, 28 U.S.C.
§ 2241, which only covers federal writs of habeas corpus. If the Amendment was found to
be so limited, a Guantanamo detainee might seek a writ of habeas corpus in a state court
relying on state statutes. See, e.g., Cal Pen Code § 1473 (2005)(state writ of habeas corpus).
Such an extraterritorial application of state habeas law is likely to be novel and would be
specific to each state statute. Consequently, an evaluation of the likely success of such a suit
is beyond the scope of this report.
115 See, e.g., Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944).
116 29 U.S.C. § 201-219.

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$1.5 billion. Subsequently, Congress enacted the Portal to Portal Act of 1947,117
which limited the jurisdiction of any court, state or federal, to impose liability or
impose punishment with respect to such liabilities. Although the act was upheld by
a series of federal district courts and courts of appeals, most of the courts disregarded
the purported jurisdictional limits, and decided the cases on the merits.
As one court noted, “while Congress has the undoubted power to give, withhold,
or restrict the jurisdiction of courts other than the Supreme Court, it must not exercise
that power as to deprive any person of life, liberty, or property without due process
or just compensation. . . .”118 The Court has also construed other similar statutes
narrowly so as to avoid “serious constitutional questions” that would arise if no
judicial forum for a constitutional claim existed.119
The Supreme Court has not directly addressed whether there needs to be a
judicial forum to vindicate all constitutional rights. Justice Scalia has pointed out that
there are particular cases, such as political questions cases, where all constitutional
review is in effect precluded.120 Other commentators point to sovereign immunity
and the ability of the government to limit the remedies available to plaintiffs.121
However, the Court has, in cases involving particular rights, generally found a
requirement that effective judicial remedies be present. Thus, for instance, the Court
has held that the Constitution mandates the availability of effective remedies for
takings.122 These cases would seem to indicate a basis for the Court to find that
parties seeking to vindicate other particular rights must have a judicial forum for such
challenges.
Conclusion
The Administration’s policy of detaining wartime captives and suspected
terrorists at Guantanamo Bay Naval Station raises a host of novel legal questions
regarding, among other matters, the relative powers of the President and Congress
to fight terrorism. The Graham Amendment to the Senate version of the National
Defense Authorization Act for FY2006 may become Congress's first effort to impose
limits on the President’s conduct of the War on Terrorism and to prescribe a role for
the courts. The precise impact the amendment would have, if enacted, with respect
to litigation already in the courts, is difficult to predict.
117 29 U.S.C. § 251-262.
118 Battaglia v. General Motors Corp., 169 F.2d 254, 257 (2d. Cir. 1948).
119 See, e.g., Webster v. Doe, 486 U.S. 592 (1988).
120 486 U.S. at 612-13 (Scalia, J., dissenting).
121 Bartlett v. Bowen, 816 F.2d 695, 719-720 (1987)(Bork, J., dissenting).
122 First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S.
304 (1987).