Order Code RL33180
Enemy Combatant Detainees: Habeas Corpus
Challenges in Federal Court
Updated April 6, 2007
Jennifer K. Elsea and Kenneth R. Thomas
Legislative Attorneys
American Law Division
Enemy Combatant 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 persons detained at the U.S.
Naval Station in Guantanamo Bay, Cuba, in connection with the war against
terrorism (Rasul v. Bush), the Pentagon established administrative hearings, called
“Combatant Status Review Tribunals” (CSRTs), to allow the detainees to contest
their status as enemy combatants, and informed them of their right to pursue relief
in federal court by seeking a writ of habeas corpus. Lawyers subsequently filed
dozens of petitions on behalf of the detainees in the District Court for the District of
Columbia, where district court judges reached inconsistent conclusions as to whether
the detainees have any enforceable rights to challenge their treatment and detention.
In December 2005, Congress stepped into the fray, passing the Detainee
Treatment Act of 2005 (DTA) to require uniform standards for interrogation of
persons in the custody of the Department of Defense, and expressly to ban cruel,
inhuman, or degrading treatment of detainees in the custody of any U.S. agency
anywhere overseas. The DTA also divested the courts of jurisdiction to hear some
detainees’ challenges by eliminating the federal courts’ statutory jurisdiction over
habeas claims by aliens detained at Guantanamo Bay (as well as other causes of
action based on their treatment or living conditions). The DTA provides instead for
limited appeals of CSRT determinations or final decisions of military commissions.
In Hamdan v. Rumsfeld, the Supreme Court rejected the view that the DTA left
it without jurisdiction to review a habeas challenge to the validity of military
commissions established by President Bush to try suspected terrorists. In holding the
military commissions invalid, the Court did not revisit its 2004 opinion in Hamdi v.
Rumsfeld upholding the President’s authority to detain individuals in connection with
antiterrorism operations, but it did hold that “in undertaking to try Hamdan and
subject him to criminal punishment, the Executive is bound to comply with the Rule
of Law that prevails in this jurisdiction.”
The Court’s decision led the 109th Congress to enact the Military Commissions
Act of 2006 (MCA) (P.L. 109-366) to authorize the President to convene military
commissions and to amend the DTA to further reduce the access to federal courts by
“alien enemy combatants,” by eliminating pending and future causes of action other
than the limited review of military proceedings permitted under the DTA. The Court
of Appeals for the D.C. Circuit dismissed the Guantanamo detainees’ petitions for
habeas corpus on the basis of the DTA, as amended. Although the Court has denied
the petitioners certiorari (Boumediene v. Bush), it may eventually take up
constitutional issues implicated by the MCA, including whether it violates the
Suspension Clause (U.S. Const. Art. 1, § 9, cl. 2), whether it amounts to an
impermissible “court-stripping” measure to deprive the judiciary of jurisdiction over
matters of law entrusted to it by the Constitution, and whether such constitutionally
sensitive issues can be avoided in light of the alternative procedures provided.
Legislation to amend the MCA has been introduced (H.R. 267, S. 185, S. 576, H.R.
1415, H.R. 1416). This report will be updated as events warrant.
Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Rasul v. Bush . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Combatant Status Review Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Court Challenges to the Detention Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Khalid v. Bush . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
In re Guantanamo Detainee Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Hamdan v. Rumsfeld . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Presidential Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
The Geneva Conventions and the Law of War . . . . . . . . . . . . . . . . . . 12
Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Al-Marri v. Wright . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Detainee Treatment Act of 2005 (DTA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
The Military Commissions Act of 2006 (MCA) . . . . . . . . . . . . . . . . . . . . . . . . . 18
Provisions Affecting Court Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Provisions Regarding the Geneva Conventions . . . . . . . . . . . . . . . . . . . . . . 20
Post-MCA Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Possible Application to U.S. Citizens . . . . . . . . . . . . . . . . . . . . . . . . . 23
Court Decision — Boumediene v. Bush . . . . . . . . . . . . . . . . . . . . . . . . 24
Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Constitutional Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
The Suspension of Habeas Corpus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Limiting Court Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
The Fact and Length of Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Conditions of Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Congressional Authority over Federal Courts . . . . . . . . . . . . . . . . . . . . . . . 33
Separation of Powers Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Eliminating Federal Court Jurisdiction Where There Is No State
Court Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Enemy Combatant Detainees: Habeas
Corpus Challenges in Federal Court
In Hamdi v. Rumsfeld,1 a divided Supreme Court declared that “a state of war
is not a blank check for the president”and ruled that persons deemed “enemy
combatants” have the right to challenge their detention before a judge or other
“neutral decision-maker.” The Court did not decide whether the same right applies
to aliens held as enemy combatants outside of the United States, but held in Rasul v.
Bush2 that federal courts have jurisdiction to hear habeas petitions by or on behalf of
such detainees. The latter decision reversed the holding of the Court of Appeals for
the District of Columbia Circuit, which had agreed with the Bush Administration that
no U.S. court has jurisdiction to hear petitions for habeas corpus by or on behalf of
the detainees because they are aliens and are detained outside the sovereign territory
of the United States. Lawyers filed dozens of petitions on behalf of the detainees in
the District Court for the District of Columbia, where judges reached conflicting
conclusions as to whether the detainees have any enforceable rights to challenge their
treatment and detention.
After the Supreme Court granted certiorari to hear a challenge by one of the
detainees to his trial by military tribunal, Congress passed the Detainee Treatment
Act of 2005 (DTA). The DTA requires uniform standards for interrogation of
persons in the custody of the Department of Defense (DOD), and expressly bans
cruel, inhuman, or degrading treatment of detainees in the custody of any U.S.
agency. At the same time, however, it divested the courts of jurisdiction to hear
challenges by those detained at Guantanamo Bay based on their treatment or living
conditions. The DTA also includes a modified version of the Graham Amendment
(S.Amdt. 2516 to S. 1042, 109th Cong., “the Graham-Levin Amendment”), which
eliminates the federal courts’ statutory jurisdiction over habeas claims by aliens
challenging their detention at Guantanamo Bay, but provides for limited appeals of
status determinations made pursuant to the DOD procedures for Combatant Status
Review Tribunals (CSRTs) or by military commissions.
In Hamdan v. Rumsfeld, decided June 29, 2006, the Supreme Court rejected the
government’s argument that the DTA divested it of jurisdiction to hear the case, and
reviewed the validity of military commissions established to try suspected terrorists
of violations of the law of war, pursuant to President Bush’s military order. The
Court did not revisit its 2004 opinion in Hamdi v. Rumsfeld upholding the President’s
authority to detain individuals in connection with antiterrorism operations, and did
not resolve whether the petitioner could claim prisoner-of-war (POW) status, but held
1 542 U.S. 507 (2004).
2 542 U.S. 466 (2004).
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that “in undertaking to try Hamdan and subject him to criminal punishment, the
Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.”
In response to the Court’s decision, the 109th Congress enacted the Military
Commissions Act of 2006 (MCA) (P.L. 109-366) to authorize the President to
convene military commissions and to amend the DTA to further reduce the access of
aliens in U.S. custody to federal court, to the extent that such jurisdiction existed, by
expressly eliminating court jurisdiction over all pending and future causes of action
other than the limited review of military proceedings permitted under the DTA. A
federal district judge dismissed Hamdan’s new petition for habeas corpus on the
basis of the DTA, as amended, holding that the MCA is not a suspension of the Writ
of Habeas Corpus within the meaning of the Constitution.3 The U.S. Court of
Appeals for the D.C. Circuit issued an order dismissing other detainee cases based
on similar reasoning.4 The Supreme Court denied the petitioners’ request for
review,5 with three Justices dissenting to the denial and two Justices explaining the
basis for their support. Justice Breyer, joined by Justices Souter and Ginsburg,
dissented, expressing disagreement with the circuit court decision and skepticism that
the relevant issues can be resolved through the alternate remedies. Justice Stevens,
joined by Justice Kennedy, wrote a statement explaining their view that the
petitioners should first exhaust remedies available under the DTA unless the
petitioners can show that the government is causing delay or some other ongoing
injury that would make those remedies inadequate. It therefore seems likely that at
least four Justices, the number required for a grant of certiorari, would vote to
undertake a review of issues related to the MCA if another opportunity presents
itself. Unless Congress or the President takes some action to alter the MCA or
resolve the petitioners’ complaints, it seems likely the Supreme Court will eventually
have cause to test constitutional issues with respect to the Suspension Clause (U.S.
Const. Art. 1, § 9, cl. 2), determine whether the provision 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 decide whether such
constitutionally sensitive issues can be avoided in light of the alternative procedures
provided.
This report provides an overview of the CSRT procedures, summarizes court
cases related to the detentions and the use of military commissions, and summarizes
the Detainee Treatment Act, as amended by the Military Commissions Act of 2006,
analyzing its effects on detainee-related litigation in federal court. The report
summarizes pending legislation and provides an analysis of relevant constitutional
issues, including whether the DTA provisions amount to a suspension of the Writ of
Habeas Corpus within the meaning of the Suspension Clause or whether it is a valid
exercise of Congress’s power under the Constitution to regulate the jurisdiction of
federal courts.
3 Hamdan v. Rumsfeld, 464 F.Supp. 2d 9 (D. D.C. 2006).
4 Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007).
5 Boumediene v. Bush, 549 U.S. __ (2007).
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Background
The White House determined in February 2002 that Taliban detainees are
covered under the Geneva Conventions,6 while Al Qaeda detainees are not,7 but that
none of the detainees qualifies for the status of prisoner of war (POW).8 The
Administration deemed all of them to be “unlawful enemy combatants,” and claimed
the right to detain them without trial or continue to hold them even if they are
acquitted by a military tribunal. Twenty of the detainees have been determined by
the President to be subject to his military order (“MO”) of November 13, 2001,9
making them eligible for trial by military commission.10 The Supreme Court,
however, found that the procedural rules established by the Department of Defense
to govern the military commissions were not established in accordance with the
Uniform Code of Military Justice (UCMJ).11 The following sections trace the
judicial developments with respect to the detention of alleged enemy combatants.
Rasul v. Bush12
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,13 “‘the privilege of litigation’
does not extend to aliens in military custody who have no presence in ‘any territory
over which the United States is sovereign.’” The Court distinguished Rasul by noting
that Eisentrager concerned the constitutional right to habeas corpus rather than the
right as implemented by statute. The Rasul Court did not reach the constitutional
issue, but found authority for federal court jurisdiction in 28 U.S.C. § 2241, which
6 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”).
7 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].
8 For more history and analysis, see CRS Report RL31367, Treatment of ‘Battlefield
Detainees’ in the War on Terrorism, by Jennifer K. Elsea.
9 Order on Detention, Treatment, and Trial of Certain Non-Citizens in the War against
Terrorism, November 13, 2001, 66 Fed. Reg. 57,833 (2001)(hereinafter “MO” or “military
order”).
10 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 K. Elsea.
11 10 U.S.C. § 801 et seq.
12 542 U.S. 466 (2004).
13 339 U.S. 763 (1950).
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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.”14
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.”15 The Rasul Court noted that the Guantanamo
petitioners, in contrast, “are not nationals of countries at war with the United States,
and they deny that they have engaged in or plotted acts of aggression against the
United States; they have never been afforded access to any tribunal, much less
charged with and convicted of wrongdoing; and for more than two years they have
been imprisoned in territory over which the United States exercises exclusive
jurisdiction and control.”
14 Rasul, 542 U.S. at 478-79. When Eisentrager was decided in 1950, the Rasul majority
found, the “respective jurisdictions” of federal district courts were understood to extend no
farther than the geographical boundaries of the districts (citing Ahrens v. Clark, 335 U.S.
188 (1948)). According to the Court, that understanding was altered by a line 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 2003 Term: Summary and Analysis
of Opinions Related to Detainees in the War on Terrorism, by Jennifer K. Elsea.
15 Rasul, 542 U.S. at 475 (citing Eisentrager, 339 U.S. at 777).
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As to the petitioners’ claims based on statutes other than the habeas statute,
which included the federal question statute16 as well as the Alien Tort Statute,17 the
Court applied the same reasoning to conclude that nothing precluded the detainees
from bringing such claims before a federal court.18
The Court’s opinion left many questions unanswered. It is unclear which of the
Eisentrager (or Rasul) factors would control under a different set of facts.19 The
opinion did 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. However, the Hamdan opinion seems to indicate
that a majority of the Court regards Eisentrager as a ruling denying relief on the
merits rather than a ruling precluding jurisdiction altogether.20 Under this view, it
may be argued, there was no statutory bar precluding detainees in U.S. custody
overseas from petitioning for habeas relief in U.S. courts.
The Court did not decide the merits of the petitions, although in a footnote the
majority opined that “Petitioners’ allegations — that, although they have engaged
neither in combat nor in acts of terrorism against the United States, they have been
held in Executive detention for more than two years in territory subject to the
long-term, exclusive jurisdiction and control of the United States, without access to
counsel and without being charged with any wrongdoing — unquestionably describe
‘custody in violation of the Constitution or laws or treaties of the United States.’”
The opinion left to lower courts such issues as whether the detentions are authorized
by Congress, who may be detained and what evidence might be adduced to determine
whether a person is an enemy combatant, or whether the Geneva Conventions afford
the detainees any protections. The Court did not address the extent to which
Congress might alter federal court jurisdiction over detainees’ habeas petitions, 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
16 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.”).
17 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.”).
18 Rasul, 542 U.S. at 484 (“nothing in Eisentrager or in any of our other cases categorically
excludes aliens detained in military custody outside the United States from the ‘privilege
of litigation’ in U.S. courts”).
19 The Court noted that “Eisentrager made quite clear that all six of the facts critical to its
disposition were relevant only to the question of the prisoners’ constitutional entitlement
to habeas corpus.” Rasul, 542 U.S. at 476 (emphasis original).
20 Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2793 (2006)(characterizing the Eisentrager
decision, 339 U.S. 763, 790(1950), as having rejected the treaty claim “on the merits”).
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traditional wars.21 Detainees who are determined not to be enemy combatants are to
be transferred to their country of citizenship or otherwise dealt with “consistent with
domestic and international obligations and U.S. foreign policy.”22 CSRTs have
confirmed the status of 520 enemy combatants. 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 witnesses23 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).
21 See Department of Defense (DOD) Fact Sheet, “Combatant Status Review Tribunals,”
available at [http://www.defenselink.mil/news/Jul2004/d20040707factsheet.pdf]. CSRT
proceedings are modeled on the procedures of Army Regulation (AR) 190-8, Enemy
Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees (1997), which
establishes administrative procedures to determine the status of detainees under the Geneva
Conventions and prescribes their treatment in accordance with international law. It does not
include a category for “unlawful” or “enemy” combatants, who would presumably be
covered by the other categories.
22 See DOD Press Release, “Combatant Status Review Tribunal Order Issued” (June 7,
2004), available at [http://www.defenselink.mil/releases/2004/nr20040707-0992.html].
23 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.
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In March 2002, the Pentagon announced plans to create a separate process for
periodically reviewing the status of detainees.24 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 the Supreme Court clarified that the detainees had 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. Prior to the enactment of the Detainee Treatment Act provisions
eliminating habeas review, the Justice Department argued primarily that Rasul v.
Bush merely decided the issue of jurisdiction, but that the 1950 Supreme Court
decision in Johnson v. Eisentrager25 remains applicable to limit the relief to which
the detainees may be entitled. While more than one district judge from the D.C.
Circuit agreed,26 others did not, holding for example that detainees have the right to
the assistance of an attorney.27 One judge found that a detainee has the right to be
treated as a POW until a “competent tribunal” decides otherwise,28 but the appellate
court reversed. The following sections summarize the three most important decisions
prior to the enactment of the MCA, including the first case to reach the Supreme
Court, Hamdan v. Rumsfeld. The Court of Appeals for the D.C. Circuit has ordered
these cases dismissed for lack of jurisdiction on the basis of the MCA.29
24 See DOD Press Release, “DoD Announces Draft Detainee Review Policy” (March 3,
2004), available at [http://www.defenselink.mil/releases/2004/nr20040303-0403.html].
25 339 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”).
26 Khalid v. Bush, 355 F. Supp. 2d 311 (D. D.C. 2005); Hamdan v. Rumsfed, 464 F. Supp.2d
9 (D. D.C. 2006).
27 Al Odah v. United States, 346 F. Supp. 2d 1 (D. D.C. 2004).
28 Hamdan v. Rumsfeld, 344 F. Supp. 2d 152 (D. D.C. 2004), rev’d 415 F.3d 33 (D.C. Cir.),
rev’d 548 U.S. __ (2006).
29 Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007).
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Khalid v. Bush30
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),31 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,32 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.”33
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,34 and gives the President virtually
unlimited authority to exercise his war power wherever enemy combatants are
found.35 The circumstances behind the off-battlefield captures did, however,
apparently preclude the petitioners from claiming their detentions violate the Geneva
Conventions.36 Other treaties put forth by the petitioners were found to be unavailing
because of their non-self-executing nature.37
30 355 F. Supp. 2d 311 (D. D.C. 2005), vacated and dismissed sub nom. Boumediene v.
Bush, 476 F.3d 981 (D.C. Cir.), cert. denied 549 U.S. __ (2007).
31 Authorization for Use of Military Force (“the AUMF”), P.L. 107-40, 115 Stat. 224 (2001).
32 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.
33 355 F. Supp. 2d at 314.
34 Id. at 320.
35 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.
36 Id. at 326.
37 Id. at 327. It may be argued that the habeas statute itself (28 U.S.C. § 2241), which
authorizes challenges of detention based on treaty violations, provided a means for private
enforcement, at least prior to its amendment by the MCA. See Eisentrager, 339 U.S. at 789
(while noting that the 1929 Geneva Convention did not provide for private enforcement,
(continued...)
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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.”38 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 Cases39
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.40 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
37 (...continued)
considering but rejecting the habeas claim that the treaty vitiated jurisdiction of military
commission).
38 Id. at 330 (citations omitted).
39 355 F. Supp. 2d 443 (D. D.C. 2005), vacated and dismissed sub nom. Boumediene v.
Bush, 476 F.3d 981 (D.C. Cir.), cert. denied 549 U.S. __ (2007).
40 Id. at 465 (citing Hamdi v. Rumsfeld).
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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.”41
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.42
The D.C. Circuit Court of Appeals heard the appeal of this case, consolidated
with the Khalid decision, supra, and vacated both, dismissing the petitions for lack
of jurisdiction on the basis of the MCA. The appellate court decision and Supreme
Court denial of certiorari are discussed infra.
Hamdan v. Rumsfeld
Salim Ahmed Hamdan, who was captured in Afghanistan and is alleged to have
worked for Osama Bin Laden as a bodyguard and driver, brought this challenge to
the lawfulness of the Secretary of Defense’s plan to try him for alleged war crimes
before a military commission,43 arguing that the military commission rules and
procedures were inconsistent with the UCMJ44 and that he had the right to be treated
as a prisoner of war under the Geneva Conventions.45 U.S. District Judge Robertson
agreed, finding no inherent authority in the President as Commander-in-Chief of the
Armed Forces to create such tribunals outside of the existing statutory authority, with
which the military commission rules did not comply. He also concluded that the
Geneva Conventions apply to the whole of the conflict in Afghanistan, including
under their protections all persons detained in connection with the hostilities there,46
and that Hamdan was thus entitled to be treated as a prisoner of war until his status
was determined to be otherwise by a competent tribunal, in accordance with article
5 of the Third Geneva Convention (prisoners of war).
The D.C. Circuit Court of Appeals reversed, ruling that the Geneva Conventions
are not judicially enforceable. Judge Williams wrote a concurring opinion,
41 Id. at 475 (internal citations omitted).
42 Id. at 476.
43 344 F. Supp. 2d 152 (D. D.C. 2004), 415 F.3d 33 (D.C. Cir. 2005), rev’d 548 U.S. __ (2006).
44 10 U.S.C. §§ 801 et seq.
45 There are four Conventions, the most relevant of which is The Geneva Convention
Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 3317 (hereinafter
“GPW”).
46 344 F. Supp. 2d at 161.
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construing Common Article 3 to apply to any conflict with a non-state actor,47
without regard to the geographical confinement of such a conflict within the borders
of a signatory state. The Circuit Court interpreted the UCMJ language to mean that
military commission rules have only to be consistent with those articles of the UCMJ
that refer specifically to military commissions, and therefore need not be uniform
with the rules that apply to courts-martial. After the appellate court decision was
handed down, Congress passed the Detainee Treatment Act of 2005 (DTA),48 which
revoked federal court jurisdiction to hear habeas corpus petitions and other causes
of action brought by Guantanamo detainees. (The provisions of the DTA are
discussed in greater detail infra). The Supreme Court nevertheless granted review
and reversed.
Jurisdiction. Before reaching the merits of the case, the Supreme Court
declined to accept the government’s argument that Congress, by passing the DTA,
had stripped the Court of its jurisdiction to review habeas corpus challenges by or
on behalf of Guantanamo detainees whose petitions had already been filed.49 The
Court also declined to dismiss the appeal as urged by the government on the basis
that federal courts should abstain from intervening in cases before military tribunals
that have not been finally decided,50 noting the dissimilarities between military
commission trials and ordinary courts-martial of service members pursuant to
procedures established by Congress.51 The government’s argument that the petitioner
had no rights conferred by the Geneva Conventions that could be adjudicated in
federal court likewise did not persuade the Court to dismiss the case. Regardless of
whether the Geneva Conventions provide rights enforceable in Article III courts, the
47 GPW art. 3. For a discussion of Common Article 3, see CRS Report RL31367, Treatment
of “Battlefield Detainees” in the War on Terrorism, by Jennifer K. Elsea.
48 P.L. 109-148, §1005(e)(1) provides that “no court … shall have jurisdiction to hear or
consider … an application for … habeas corpus filed by … an alien detained … at
Guantanamo Bay.” The provision was not yet law when the appellate court decided against
the petitioner, Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005), rev’d 548 U.S. __ (2006).
At issue was whether this provision applies to pending cases. The Court found that the
provision did not apply to Hamdan’s petition, because the case did not fall under either of
the categories of cases over which the DTA had created appellate review in the D.C. Circuit.
The Court did not resolve whether the DTA affects cases that fall under the DTA’s
provisions regarding final review of Combatant Status Review Tribunals, for which habeas
review was eliminated as to pending cases. Slip op. at 19, and n.14.
49 Id. at 7. To resolve the question, the majority employed canons of statutory interpretation
supplemented by legislative history, avoiding the question of whether the withdrawal of the
Court’s jurisdiction would constitute a suspension of the Writ of Habeas Corpus, or whether
it would amount to impermissible “court-stripping.” Justice Scalia, joined by Justices Alito
and Thomas in his dissent, interpreted the DTA as a revocation of jurisdiction.
50 Id. at 20. The court below had also rejected this argument, 413 F.3d 33, 36 (D.C. Cir.
2005).
51 See Hamdan, slip op. at 23 (stating that the bodies established by the Department of
Defense to review the decisions of military commissions “clearly lack the structural
insulation from military influence that characterizes the Court of Appeals for the Armed
Forces....”).
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Court found that Congress, by incorporating the “law of war” into UCMJ article 21,52
brought the Geneva Conventions within the scope of law to be applied by courts.
Justice Scalia, joined by Justices Thomas and Alito, dissented, arguing that the DTA
should be interpreted to preclude the Court’s review.
Presidential Authority. With respect to the authority to create the military
commissions, the Court held that any power to create them must flow from the
Constitution and must be among those “powers granted jointly to the President and
Congress in time of war.”53 It disagreed with the government’s position that
Congress had authorized the commissions either when it passed the Authorization to
Use Military Force (AUMF)54 or the DTA. Although the Court assumed that the
AUMF activated the President’s war powers, it did not view the AUMF as expanding
the President’s powers beyond the authorization set forth in the UCMJ. The Court
also noted that the DTA, while recognizing the existence of military commissions,
does not specifically authorize them. At most, these statutes “acknowledge a general
Presidential authority to convene military commissions in circumstances where
justified under the ‘Constitution and laws,’ including the law of war.”55
The Geneva Conventions and the Law of War. The habeas corpus
statute permits those detained under U.S. authority to challenge their detention on the
basis that it violates any statute, the Constitution, or a treaty.56 The D.C. Circuit
nevertheless held that the Geneva Conventions are never enforceable in federal
courts.57 The Supreme Court disagreed, but found the Conventions were applicable
as incorporated by UCMJ Article 21, because “compliance with the law of war is the
condition upon which the authority set forth in Article 21 is granted.”58 In response
to the alternative holding by the court below that Hamdan, as a putative member of
al Qaeda, was not entitled to any of the protections accorded by the Geneva
Conventions, the Court concluded that Common Article 3 of the Geneva
Conventions applies even to members of al Qaeda, according to them a minimum
baseline of protections, including protection from the “passing of sentences and the
carrying out of executions without previous judgment pronounced by a regularly
52 10 U.S.C. § 821 (“The provisions of [the UCMJ] conferring jurisdiction upon
courts-martial do not deprive military commissions, provost courts, or other military
tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or
by the law of war may be tried by military commissions, provost courts, or other military
tribunals.”)
53 Hamdan, slip op. at 27 (citing Congress’s powers to “declare War ... and make Rules
concerning Captures on Land and Water,” Art. I, §8, cl. 11, to “raise and support Armies,”
Id., cl. 12, to “define and punish ... Offences against the Law of Nations,” Id., cl. 10, and
“To make Rules for the Government and Regulation of the land and naval Forces,” Id., cl.
14.).
54 P.L. 107-40, 115 Stat. 224 (2001).
55 Hamdan, slip op. at 30.
56 28 U.S.C. § 2241(c)(3)(permitting petitions by prisoners “in custody in violation of the
Constitution or laws or treaties of the United States”).
57 See 415 F.3d at 39 (citing Johnson v. Eisentrager, 339 U.S. 763, 789, n. 14).
58 Hamdan, slip op. at 63.
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constituted court, affording all the judicial guarantees which are recognized as
indispensable by civilized peoples.”59
While recognizing that Common Article 3 “obviously tolerates a great degree
of flexibility in trying individuals captured during armed conflict,” and that “its
requirements are general ones, crafted to accommodate a wide variety of legal
systems,” the Court found that the military commissions under M.C.O. No. 1 did not
meet these criteria. In particular, the military commissions did not qualify as
“regularly constituted” because they deviated too far, in the Court’s view, from the
rules that apply to courts-martial, without a satisfactory explanation of the need for
such deviation.60 Justice Alito, joined by Justices Scalia and Thomas, dissented,
arguing that the Court is bound to defer to the President’s plausible interpretation of
the treaty language.
Analysis. While the Hamdan Court declared the military commissions as
constituted under the President’s Military Order to be “illegal,” it left open the
possibility that changes to the military commission rules could cure any defects by
bringing them within the law of war and conformity with the UCMJ, or by asking
Congress to authorize or craft rules tailored to the Global War on Terrorism
(GWOT). The Court did not resolve the extent to which the detainees, as aliens held
outside of U.S. territory, have constitutional rights enforceable in federal court.
The decision may affect the treatment of detainees outside of their criminal
trials; for example, in interrogations for intelligence purposes. Common Article 3
of the Geneva Conventions mandates that all persons taking no active part in
hostilities, including those who have laid down their arms or been incapacitated by
capture or injury, are to be treated humanely and protected from “violence to life and
person,” torture, and “outrages upon personal dignity, in particular, humiliating and
degrading treatment.” Insofar as these protections are incorporated in the UCMJ and
other laws, it would seem the Court is ready to interpret and adjudicate them, to the
extent it retains jurisdiction to do so. It is not clear how the Court views the scope
of the GWOT, however, because its decisions on the merits have been limited to
cases arising out of hostilities in Afghanistan.
59 GPW art. 3 § 1(d). The identical provision is included in each of the four Geneva
Conventions and applies to any “conflict not of an international character.” The majority
declined to accept the President’s interpretation of Common Article 3 as inapplicable to the
conflict with al Qaeda and interpreted the phrase “in contradistinction to a conflict between
nations,” which the Geneva Conventions designate a “conflict of international character”.
Hamdan, slip op. at 67.
60 Id. at 70 (plurality opinion); Id. (Kennedy, J., concurring) at 10. Justice Stevens, joined
by Justices Ginsburg, Breyer, and Souter, further based their conclusion on the basis that
M.C.O. No. 1 did not meet all criteria of art. 75 of Protocol I to the Geneva Conventions of
1949, adopted in 1977 (Protocol I). While the United States is not party to Protocol I, the
plurality noted that many authorities regard it as customary international law.
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The opinion reaffirms the holding in Rasul v. Bush61 that the GWOT does not
provide the President a “blank check,” and, by finding in favor of a noncitizen held
overseas, seems to have expanded the Hamdi comment that
[w]hatever power the United States Constitution envisions for the Executive in
its exchanges with other nations or with enemy organizations in times of
conflict, it most assuredly envisions a role for all three branches when individual
liberties are at stake.62
The dissenting views also relied in good measure on actions taken by Congress,
seemingly repudiating the view expressed earlier by the Executive that any efforts by
Congress to legislate with respect to persons captured, detained, and possibly tried
in connection with the GWOT would be an unconstitutional intrusion into powers
held exclusively by the President.63 Expressly or implicitly, all eight participating
Justices applied the framework set forth by Justice Jackson in his famous
concurrence in the Steel Seizures case,64 which accords greater deference to the
President in cases involving national security where he acts with express
congressional authority than when he acts alone. The differing views among the
Justices seem to have been a function of their interpretation of the AUMF and other
acts of Congress as condoning or limiting executive actions.65 The Military
Commissions Act of 2006 likely resolves many issues regarding the scope of
authority the President may exercise; however, the constitutionality of the various
measures remains to be resolved, assuming the courts retain jurisdiction to resolve
them.
Al-Marri v. Wright
The case of Ali Saleh Kahlah al-Marri differs from cases discussed above in that
the petitioner, a lawful alien resident, was arrested and is imprisoned within the
United States. Al-Marri, a Qatari student, was arrested in December 2001 in Peoria,
Illinois, and transported to New York City, where he was held as a material witness
for the grand jury investigating the 9/11 attacks. He was later charged with financial
fraud and making false statements and transferred back to Peoria. Before his case
went to trial, however, he was declared an “enemy combatant” and transferred to
military custody in South Carolina. Al-Marri’s counsel filed a petition for habeas
corpus challenging Al-Marri’s designation and detention as an “enemy combatant.”
The petition was eventually dismissed for lack of jurisdiction by the U.S. Court of
61 542 U.S. 466 (2004).
62 542 U.S. 507, 535 (2004).
63 See, e.g., Oversight of the Department of Justice: Hearing Before the Senate Judiciary
Committee, 107th Cong. (2002) (testimony of Attorney General John Ashcroft) (arguing that
a statute that could be read to interfere with the executive power to detain enemy combatants
must be interpreted otherwise to withstand constitutional scrutiny).
64 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
65 For information about relevant legislation, see CRS Report RL31600, The Department of
Defense Rules for Military Commissions: Analysis of Procedural Rules and Comparison
with Proposed Legislation and the Uniform Code of Military Justice.
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Appeals for the Seventh Circuit,66 and a new petition was filed in the Fourth Circuit.
In March 2005, Judge Floyd agreed with the government that the detention was
authorized by the AUMF and transferred the case to a federal magistrate to examine
the factual allegations supporting the government’s detention of the petitioner as an
enemy combatant.67 The magistrate judge recommended the dismissal of the petition
on the basis of information the government provided, which the magistrate judge
concluded was sufficient for due process purposes in line with the Hamdi decision.68
The district judge adopted the magistrate judge’s report and recommendations in full,
rejecting the petitioner’s argument that his capture away from a foreign battlefield
precluded his designation as an “enemy combatant.”69
After the petitioner appealed, the government moved to dismiss the appeal on
the basis that the MCA strips the court of jurisdiction. The petitioner asserts on
appeal that Congress did not intend to deprive him of his right to habeas or that,
alternatively, the MCA is unconstitutional. Oral arguments took place before a panel
of the Fourth Circuit on January 31, 2007. The case raises questions with respect to
the MCA that do not rely on the status of Guantanamo Bay for a determination of
whether the Writ of Habeas Corpus applies. The final disposition by the Fourth
Circuit may elucidate the rights to which Guantanamo Bay detainees would be
entitled if they were to be transferred to the United States, but is almost certain to
result in an appeal to the Supreme Court.
Detainee Treatment Act of 2005 (DTA)
The Detainee Treatment Act of 2005 (DTA), passed after the Court’s decision
in Rasul, requires uniform standards for interrogation of persons in the custody of the
Department of Defense,70 and expressly bans cruel, inhuman, or degrading treatment
66 Al-Marri v. Rumsfeld, 360 F.3d 707 (7th Cir. 2004), cert. denied 543 U.S. 809 (2004).
67 Al-Marri v. Hanft, 378 F. Supp.2d 673 (D. S.C.2005) (order denying summary judgment).
68 Al-Marri v. Wright, 443 F. Supp. 2d 774 (D. S.C. 2006) (citing Hamdi v. Rumsfeld, 542
U.S. 507 (2004)). With respect to the “due process hearing” required to establish that an
enemy combatant is properly held, the Hamdi plurality stated that:
enemy combatant proceedings may be tailored to alleviate their uncommon
potential to burden the Executive at a time of ongoing military conflict. Hearsay,
for example, may need to be accepted as the most reliable available evidence
from the Government in such a proceeding. Likewise, the Constitution would not
be offended by a presumption in favor of the Government’s evidence, so long as
that presumption remained a rebuttable one and fair opportunity for rebuttal were
provided. Thus, once the Government puts forth credible evidence that the
habeas petitioner meets the enemy-combatant criteria, the onus could shift to the
petitioner to rebut that evidence with more persuasive evidence that he falls
outside the criteria.
443 F. Supp. 2d 778 (quoting Hamdi at 534).
69 Id. at 778-80.
70 Section 1002 of P.L. 109-148 requires DOD to follow the Army Field Manual for
intelligence interrogation. See DEPARTMENT OF THE ARMY FIELD MANUAL 34-52,
(continued...)
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of detainees in the custody of any U.S. agency.71 The prohibited treatment is defined
as that which would violate the Fifth, Eighth, and Fourteenth Amendments to the
U.S. Constitution, as the Senate has interpreted “cruel, inhuman, or degrading”
treatment banned by the U.N. Convention Against Torture.72 The provision does not
create a cause of action for detainees to ask a court for relief based on inconsistent
treatment, and it divests the courts of jurisdiction to hear challenges by those detained
at Guantanamo Bay based on their treatment or living conditions.73 It also provides
a legal defense to U.S. officers and agents who may be sued or prosecuted based on
their treatment or interrogation of detainees.74 This language appears to have been
added as a compromise because the Administration reportedly sought to have the
Central Intelligence Agency excepted from the prohibition on cruel, inhuman and
degrading treatment on the grounds that the President needs “maximum flexibility
in dealing with the global war on terrorism.” 75
The DTA also includes a modified version of the “Graham-Levin
Amendment,”76 which requires the Defense Department to submit to the Armed
Services and Judiciary Committees the procedural rules for determining detainees’
status.77 The amendment neither authorizes nor requires a formal status
70 (...continued)
INTELLIGENCE INTERROGATION (1992), available at [http://www4.army.mil/ocpa/reports/
ArmyIGDetaineeAbuse/FM34-52IntelInterrogation.pdf] (Sep. 1, 2004). For an analysis of
the approved interrogation procedures, see CRS Report RL32567, Lawfulness of
Interrogation Techniques under the Geneva Conventions, by Jennifer K. Elsea.
71 Section 1003 of P.L. 109-148. See CRS Report RL33655, Interrogation of Detainees:
Overview of the McCain Amendment, by Michael John Garcia.
72 Section 1003(d) of P.L. 109-148. For more information, see CRS Report RL32438, U.N.
Convention Against Torture (CAT): Overview and Application to Interrogation Techniques,
by Michael John Garcia.
73 Section 1005 of P.L. 109-148 (denying aliens in military custody privilege to file writ of
habeas corpus or “any other action against the United States or its agents relating to any
aspect of the[ir] detention. . .”).
74 Section 1004 of P.L. 109-148 provides a defense in litigation related to “specific
operational practices,” involving detention and interrogation where the defendant
did not know that the practices were unlawful and a person of ordinary sense and
understanding would not know the practices were unlawful. Good faith reliance
on advice of counsel should be an important factor, among others, to consider in
assessing whether a person of ordinary sense and understanding would have
known the practices to be unlawful.
75 See Eric Schmitt, Exception Sought in Detainee Abuse Ban, N.Y. TIMES, Oct. 25, 2005,
at 16.
76 151 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).
77 The amendment refers to both the Combatant Status Review Tribunals (“CSRTs”), the
initial administrative procedure to confirm the detainees’ status as enemy combatants, and
(continued...)
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determination, but it does require that certain congressional committees be notified
30 days prior to the implementation of any changes to the rules. As initially adopted
by the Senate, the amendment would have required these procedural rules to preclude
evidence determined by the board or tribunal to have been obtained by undue
coercion, however, the conferees modified the language so that the tribunal or board
must assess, “to the extent practicable ... whether any statement derived from or
relating to such detainee was obtained as a result of coercion” and “the probative
value, if any, of any such statement.”
The Graham-Levin Amendment also eliminates the federal courts’ statutory
jurisdiction over habeas claims by aliens detained at Guantanamo Bay, but provides
for limited appeals of status determinations made pursuant to the DOD procedures
for Combatant Status Review Tribunals (CSRTs).78 The D.C. Circuit Court of
Appeals has exclusive jurisdiction to hear appeals of any status determination made
by a “Designated Civilian Official,” but the review is limited to a consideration of
whether the determination was made consistently with applicable DOD procedures,
including whether it is supported by the preponderance of the evidence, but allowing
a rebuttable presumption in favor of the government. The procedural rule regarding
the use of evidence obtained through undue coercion applies prospectively only, so
that detainees who have already been determined by CSRTs to be enemy combatants
may not base an appeal on the failure to comply with that procedure. Detainees may
also appeal status determinations on the basis that, “to the extent the Constitution and
laws of the United States are applicable, whether the use of such standards and
procedures to make the determination is consistent with the Constitution and laws of
the United States.” Jurisdiction was to cease if the detainee were transferred from
DOD custody. (Currently, jurisdiction is cut off if the detainee is transferred from
U.S. custody.)
The DTA does not elaborate on the role of the “Designated Civilian Official”
whose decision may be appealed. As the CSRTs were initially established,79 the final
approval of CSRT decisions was the responsibility of the convening authority,80 and
there was no mention of a “designated civilian official,” although this appears to be
a reference to the role of the Secretary of the Navy, to whom the order establishing
CSRTs was addressed.81 The procedures established by Secretary England refer to
77 (...continued)
the Administrative Review Boards, which were established to provide annual review that
the detainees’ continued detention is warranted.
78 Section 1405(e). Sen. Bingaman offered a second-degree amendment to eliminate the
provision, but it was not adopted.
79 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).
80 Rear Adm. James M. McGarrah currently serves as convening authority for the CSRTs.
81 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
(continued...)
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the position of Director, CSRT, who appears to be the convening authority for the
tribunals.82 At any rate, it does not appear that the Graham-Levin 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.
The DTA also provides for an appeal to the Court of Appeals for the District of
Columbia Circuit of final sentences rendered by a military commission. As initially
enacted, the DTA required the court to review capital cases or cases in which the
alien was sentenced to death or to a term of imprisonment for 10 years or more, made
review over convictions with lesser penalties discretionary. The scope of review was
limited to considering whether the decision applied the correct standards consistent
with Military Commission Order No. 1 (implementing the President’s Military
Order) and whether those standards were consistent with the Constitution and laws
of the United States, to the extent they are applicable. The act does not contain a
provision for interlocutory appeals of military commission procedures.
The Military Commissions Act of 2006 (MCA)
After the Court’s decision in Hamdan, the Bush Administration proposed
legislation to Congress, which Senator Frist introduced as the “Bringing Terrorists
to Justice Act of 2006,” S. 3861. The Senate Armed Services Committee reported
favorably a bill called the “Military Commissions Act of 2006” (S. 3901), which was
in many respects similar to the Administration’s proposal, but varied with respect to
jurisdiction and some rules of evidence. The House Armed Services Committee
approved H.R. 6054, also called the “Military Commissions Act of 2006,” which
closely tracks the Administration’s proposal. After reaching an agreement with the
White House with respect to several provisions in S. 3901, Senator McCain
introduced S. 3930, also entitled the “Military Commissions Act of 2006.”
Representative Hunter subsequently introduced a modified version of H.R. 6054 as
H.R. 6166, which the House of Representatives passed on September 28, 2006. A
manager’s amendment to S. 3930, substantially identical to the bill passed by the
House, was passed by the Senate the following day.
81 (...continued)
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).
82 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/d20040730
comb.pdf](last visited Nov. 12, 2005).
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Provisions Affecting Court Jurisdiction
The Military Commissions Act of 2006 amended the DTA provisions regarding
appellate review and habeas corpus jurisdiction.83 It expands the DTA to make its
review provisions the exclusive remedy for all aliens detained as enemy combatants
anywhere in the world, rather than only those housed at Guantanamo Bay, Cuba. It
does not, however, require that all detainees undergo a CSRT or a military tribunal
in order to continue to be confined. Thus, any aliens detained outside of Guantanamo
Bay might be effectively denied access to U.S. courts.
Appeals from the final decisions of military commissions continue to go to the
United States Court of Appeals for the District of Columbia Circuit,84 but are routed
through a new appellate body, the Court of Military Commission Review (CMCR).
CSRT determinations continue to be appealable directly to the D.C. Circuit. Review
of decisions of a military commission may only concern matters of law, not fact.85
Appeals may be based on inconsistencies with the procedures set forth by the MCA,
or, to the extent applicable, the Constitution or laws of the United States.
The MCA revokes U.S. courts’ jurisdiction to hear habeas corpus petitions by
all aliens in U.S. custody as enemy combatants, including lawful enemy combatants,
regardless of the place of custody. It replaces 28 U.S.C. § 2241(e), the habeas
provision added by the DTA, with language providing that
(1) No court, justice, or judge shall have jurisdiction to hear or consider an
application for a writ of habeas corpus filed by or on behalf of an alien detained
by the United States who has been determined by the United States to have been
properly detained as an enemy combatant or is awaiting such determination.
(2) Except as provided in paragraphs (2) [review of CSRT determinations] and
(3) [review of final decisions of military commissions] of section 1005(e) of the
Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge
shall have jurisdiction to hear or consider any other action against the United
States or its agents relating to any aspect of the detention, transfer, treatment,
trial, or conditions of confinement of an alien who is or was detained by the
United States and has been determined by the United States to have been
properly detained as an enemy combatant or is awaiting such determination.86
This amendment takes effect on the date of its enactment, and applies to “all
cases, without exception, pending on or after the date of [enactment] which relate to
any aspect of the detention, transfer, treatment, trial, or conditions of detention of an
alien detained by the United States since September 11, 2001.” This provision
83 P.L. 109-366. For a further description of the procedures associated with these military
commissions, see CRS Report RL33688, The Military Commissions Act of 2006: Analysis
of Procedural Rules and Comparison with Previous DOD Rules and the Uniform Code of
Military Justice, by Jennifer K. Elsea.
84 MCA § 5.
85 10 U.S.C. § 950g(b).
86 MCA § 7.
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appears to disallow actions in court by alien lawful combatants, but it might permit
actions by aliens who are found not to be enemy combatants by a CSRT. There is no
apparent limit to the amount of time a detainee could spend awaiting a determination
as to combatant status. Aliens who continue to be detained despite having been
determined not to be enemy combatants are not permitted to challenge their
continued detention or their treatment, nor are they able to protest their transfer to
another country, for example, on the basis that they fear torture or persecution.
Provisions Regarding the Geneva Conventions
A continuing source of dispute in the detention and treatment of detainees is the
application of the Geneva Convention. As noted previously, the habeas corpus
statute has traditionally provided for, among other things, challenges to allegedly
unlawful detentions based on rights found in treaties.87 Thus, for instance, Common
Article 3 of the 1949 Geneva Conventions, which provides for the “passing of
sentences and the carrying out of executions without previous judgment pronounced
by a regularly constituted court, affording all the judicial guarantees which are
recognized as indispensable by civilized peoples,” has been used as a basis for
challenging the confinement of detainees.88
Section 5 of the MCA, however, specifically precludes the application of the
Geneva Conventions to habeas or other civil proceedings.89 Further, the MCA
provides that the Geneva Conventions may not be claimed as a source of rights by
an alien who is subject to military commission proceedings.90 Rather, Congress
deems that the military commission structure established by the act complies with the
requirement under Common Article 3 of the Geneva Convention that trials be by a
regularly constituted court.91
87 28 U.S.C. § 2241.
88 GPW art. 3 § 1(d). See Hamdan, slip op. at 63 (noting the application of this provision of
the Geneva Conventions to detainees through the UCMJ Article 21).
89 MCA § 5(a) provides that “No person may invoke the Geneva Conventions or any
protocols thereto in any habeas corpus or other civil action or proceeding to which the
United States, or a current or former officer, employee, member of the Armed Forces, or
other agent of the United States is a party as a source of rights in any court of the United
States or its States or territories.”
90 MCA § 3 (10 U.S.C. § 948c) provides that “No alien unlawful enemy combatant subject
to trial by military commission under this chapter may invoke the Geneva Conventions as
a source of rights.”
91 MCA § 3 (10 U.S.C. § 948b(f), as amended) provides that a military commission is a
“regularly constituted court, affording all the necessary ‘judicial guarantees which are
recognized as indispensable by civilized peoples’ for purposes of common Article 3 of the
Geneva Conventions.” While this language could be construed as directing a court to find
that the MCA does not conflict with the Geneva Conventions, a better reading would appear
to be that, to the extent that there is a conflict between the MCA and the Geneva
Conventions, that the MCA should be given precedence. See generally Robertson v. Seattle
Audubon Soc’y, 503 U.S. 429 (1992).
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In addition, the act provides that the President shall have the authority to
interpret the meaning of the Geneva Conventions.92 The intended effect of this
provision is, however, unclear. While the President generally has a role in the
negotiation, implementation, and domestic enforcement of treaty obligations,93 this
power does not generally extend to “interpreting” treaty obligations, a role more
traditionally associated with courts.94 In general, Congress is prohibited from
exercising powers allocated to another branch of government.95 In United States v.
Klein,96 the Congress passed a law designed to frustrate a finding of the Supreme
Court as to the effect of a presidential pardon.97 Similarly, a law which was
specifically intended to grant the authority of the President to adjudicate or remedy
treaty violations could violate the doctrine of separation of powers, as providing
relief from acts in violation of treaties is a judicial branch function.98 Instead, what
appears to be the main thrust of this language is to establish the authority of the
President within the Executive Branch to issue interpretative regulations by
Executive Order.99 However, the context in which this additional authority would be
needed is unclear.
One possible intent of this provision is that the President is being given the
authority to “interpret” the Geneva Convention for diplomatic purposes (e.g., to
define treaty obligations and encourage other countries to conform to such
definitions). This interpretation seems unlikely, as the President’s power in this
92 MCA § 6(a)(3)(A) provides that “the President has the authority for the United States to
interpret the meaning and application of the Geneva Conventions and to promulgate higher
standards and administrative regulations for violations of treaty obligations which are not
grave breaches of the Geneva Conventions.”
93 See, e.g., id. (President is given power to promulgate higher standards and administrative
regulations for violations of treaty obligations).
94 See, e.g., MCA § 6(a)(3)(B)(“No foreign or international source of law shall supply a
basis for a rule of decision in the courts of the United States in interpreting the prohibitions
enumerated in subsection (d) of such section 2441.”).
95 See Dickerson v. United States, 530 U.S. 428, 438 (2000)(striking down congressional
statute purporting to overturn the Court’s Fourth Amendment ruling in Miranda v. Arizona);
City of Boerne v. Flores, 521 U.S. 507, 519 (1997)(Congress’ enforcement power under the
Fourteenth Amendment does not extend to the power to alter the Constitution); Plaut v.
Spendthrift Farm, 514 U.S. 211, 225 (Congress may not disturb final court rulings).
96 80 U.S. (13 Wall.) 128 (1871).
97 The Court struck down the law, essentially holding that the Congress had an illegitimate
purpose in passage of the law. “[T]he language of the proviso shows plainly that it does not
intend to withhold appellate jurisdiction except as a means to an end. Its great and
controlling purpose is to deny to pardons granted by the President the effect which this court
had adjudged them to have. . . . It seems to us that this is not an exercise of the
acknowledged power of Congress to make exceptions and prescribe regulations to the
appellate power.” 80 U.S. at 146. The Court also found that the statue impaired the effect
of presidential pardon, and thus “infringe[ed] the constitutional power of the Executive.”
Id. at 147.
98 See generally Miller v. French, 530 U.S. 327, 350-51 (2000)(Souter, J., concurring).
99 MCA § 6(a)(3)(B).
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regard is already firmly established.100 Another possible meaning is that the President
is being given the authority to apply the Geneva Conventions to particular fact
situations, such as specifying what type of interrogation techniques may be lawfully
applied to a particular individual suspected of being an enemy combatant. This
interpretation is possible, but it is not clear how the power to “interpret” would be
significant in that situation, as the MCA precludes application of the Geneva
Convention in those contexts in which such interrogations would be challenged —
military commissions, habeas corpus, or any other civil proceeding.101
The more likely intent of this language would be to give the President the
authority to promulgate regulations prescribing standards of behavior of employees
and agents of federal agencies. For instance, this language might be seen as
authorizing the President to issue regulations to implement how agency personnel
should comply with the Geneva Conventions, policies which might otherwise be
addressed at the agency level. Thus, for instance, if the CIA had established internal
procedures regarding how to perform interrogation consistent with the Geneva
Convention, then this language would explicitly authorize the President to amend
such procedures by Executive Order. Whether the President already had such power
absent this language is beyond the scope of this report.
Post-MCA Developments
Shortly after the enactment of the MCA, the government filed motions to
dismiss all of the habeas petitions in the D.C. Circuit involving detainees at
Guantanamo Bay102 and the petition of an alien detained as an enemy combatant in
a naval brig in South Carolina.103 Legislation introduced at the end of the 109th
Congress to amend the MCA did not reach the floor of either house.104
100 “If the country with which the treaty is made is dissatisfied with the action of the
legislative department, it may present its complaint to the executive head of the government,
and take such other measures as it may deem essential for the protection of its interests. The
courts can afford no redress. Whether the complaining nation has just cause of complaint,
or our country was justified in its legislation, are not matters for judicial cognizance.”
Whitney v. Robertson 124 U.S. 190, 194 (1888).
101 MCA § 5(a). It is unclear why the MCA addresses the application of the Geneva
Convention to habeas corpus proceeding brought by detainees, since such suits are
precluded by the DTA and the MCA. Section 1405(e) of P.L. 109-63; MCA, §7(a). It may
be intended to apply to habeas cases brought by U.S. citizens or by aliens who do not fall
under the definition of “enemy combatant.” On the other hand, as will be discussed infra,
there may be constitutional issues associated with limiting access of enemy combatants to
habeas corpus proceeding. In the event the habeas restrictions of the DTA are found to be
unconstitutional, then this provision may become relevant to those proceedings.
102 See Karen DeYoung, Court Told It Lacks Power in Detainee Cases, WASH. POST, Oct.
20, 2006, at A18 (reporting notice submitted by Justice Department to courts of intention
to move for dismissal of pending enemy combatant cases).
103 Al-Marri v. Wright, Case No. 06-7427 (4th Cir.).
104 See S. 4081 and H.R. 6381, 109th Cong.
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Possible Application to U.S. Citizens. Some observers have raised
concern that the MCA permits the President to detain American citizens as enemy
combatants without trial.105 The prohibition in the Military Commissions Act (MCA)
with respect to habeas corpus petitions applies only to those filed by or on behalf of
aliens detained by the United States as enemy combatants. However, the MCA can
be read by implication to permit the detention of U.S. citizens as enemy combatants,
although it does not permit their trial by military commission, which could affect
their entitlement to relief using habeas corpus procedures.
A plurality of the Supreme Court held in 2004, in Hamdi v. Rumsfeld,106 that the
President has the authority to detain U.S. citizens as enemy combatants pursuant to
the Authorization to Use Military Force (AUMF),107 but that the determination of
combatant status is subject to constitutional due process considerations. The Hamdi
plurality was limited to an understanding that the phrase “enemy combatant” means
an “individual who...was ‘part of or supporting forces hostile to the United States or
coalition partners’ in Afghanistan and who ‘engaged in an armed conflict against the
United States’ there,”108 but left it to lower courts to flesh out a more precise
definition.
In theory, the executive branch could detain a citizen as an enemy combatant
and argue that the definition of “unlawful enemy combatant” provided in the MCA,
which does not explicitly limit the definition to aliens and includes persons who
provide material support to terror groups engaged in hostilities against the United
States, should also apply to the detention authority already found by virtue of the
AUMF. Constitutional due process would apply, and the citizen could petition for
habeas corpus to challenge his detention, but under the MCA, the citizen-combatant
would not be able to assert rights based on the Geneva Convention in support of his
contention that he is not an enemy combatant. In that sense, U.S. citizens could be
affected by the MCA even though it does not directly apply to U.S. citizens.
On the other hand, since the MCA definition for unlawful enemy combatant
applies on its face only for the purposes of the new chapter 47a of title 10, U.S. code
(providing for the trial by military commission of alien unlawful enemy combatants),
it may be argued that outside of that context, the term “enemy combatant” should be
understood in the ordinary sense, that is, to include only persons who participate in
direct combat against the United States. The difficulty with this argument is that it
could then be argued that this narrower definition of “enemy combatant” would also
apply in the context of the MCA’s habeas corpus provisions, such that some aliens
who fall under the jurisdiction of a military commission under the MCA could
nevertheless argue that the MCA does not affect their right to petition for habeas
corpus or pursue any other cause of action in U.S. court, a reading that does not seem
consistent with Congress’s probable intent. Further, it does not appear that Congress
105 See, e.g., Scott Shane and Adam Liptak, Detainee Bill Shifts Power to President, N.Y.
TIMES, Sept. 30, 2006, at A1.
106 542 U.S. 507 (2004).
107 P.L. 107-40, 115 Stat. 224 (2001).
108 Id. at 516.
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meant to apply a different definition of “enemy combatant” to persons depending on
their citizenship. Congress could specify that U.S. citizens captured in the context
of the “Global War on Terror” be subject to trial in U.S. court for treason or a
violation of any other statute, or prescribe procedures for determining whether U.S.
citizens are subject to detention as enemy combatants, but it has not done so.
Court Decision — Boumediene v. Bush. The Court of Appeals for the
D.C. Circuit issued a ruling in February, 2007, in the case of Boumediene v. Bush,109
validating the MCA’s restrictions on habeas jurisdiction with respect to detainees at
the Guantanamo Bay Naval Station. The D.C. Circuit opinion closely tracks the
district court’s determination in Hamdan v. Rumsfeld,110 on remand after the Supreme
Court decision, that it no longer had jurisdiction to consider the petition, jurisdiction
having been revoked by the MCA. In that case, Judge Robertson did not agree with
the petitioner that the revocation of jurisdiction with respect to habeas corpus
petitions did not apply to pending cases. Further, he found the measure to be an
exercise of Congress’s power “to establish and to define the jurisdiction of the lower
federal courts,” and that “the fact that Congress has repealed its statutory grant of
habeas jurisdiction, [does not mean] that Congress has also ‘suspended’ the writ.”111
Finally, finding no relevant distinction between the facts in the Eisentrager decision
and the case at hand, the judge determined that the detainee has no constitutional
right to file a habeas petition112 and dismissed the case.
All three judges on the panel of the D.C. Circuit deciding Boumediene agreed
that the MCA is intended to strip the courts of jurisdiction over all cases brought by
or on behalf of aliens held as enemy combatants, and did not, as petitioners had
argued, spare pending habeas cases from the prohibition. The panel divided over
whether the jurisdictional prohibition is valid. Judge Randolph, joined by Judge
Sentelle, found that the measure does not constitute a suspension of the Writ within
the meaning of the Constitution because the majority was “aware of no case prior to
1789 going the detainees’ way,” and were thus convinced that “the writ in 1789
would not have been available to aliens held at an overseas military base leased from
a foreign government.” That the Supreme Court had suggested possibly significant
differences between the situations facing the Eisentrager petitioners and that of the
Guantanamo detainees113 did not dissuade the court from reverting to the position it
had taken in its Al Odah opinion,114 namely, that Eisentrager was controlling and
mandated dismissal for lack of jurisdiction. Judge Rogers, in dissent, would have
given the Rasul opinion greater deference, citing the principle that “carefully
109 476 F.3d 981 (D.C. Cir. 2007)(consolidated appeal of Kalid v. Bush and In re
Guantanamo Detainee Cases, discussed supra pages 7-9).
110 464 F. Supp. 2d 9 (D. D.C. 2006).
111 Id. at 12-13. The judge indicated, however, that if the measure does constitute a
suspension of the Writ within the meaning of the Constitution, “it was plainly
unconstitutional, in the absence of rebellion or invasion.” Id. at 19.
112 Id. at 19.
113 Rasul v. Bush, 542 U.S. 466, 475 (2004).
114 Al Odah v. United States, 321 F.3d 1134 (D.C. Cir 2003), rev’d sub nom Rasul v. Bush,
542 U.S. 466 (2004).
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considered language of the Supreme Court, even if technically dictum, generally must
be treated as authoritative.”115 Accordingly, she would have found the naval base to
be within the historical scope of the Writ, and would have concluded that the MCA
does constitute a suspension within the meaning of the Constitution, an issue not
addressed in Eisentrager.116
The Supreme Court denied the petitioners’ request for review,117 with three
Justices dissenting to the denial and two Justices explaining the basis for their
support. Justice Breyer, joined by Justices Souter and Ginsburg, would have granted
certiorari to provide immediate attention to the issues, given that the detainees have
already been held for more than five years and that Supreme Court review at this
stage could help define constitutional boundaries with respect to habeas corpus. He
further found plausible petitioners’ argument that the lower court’s reasoning
conflicted with the Rasul opinion, and noted the possible constitutional relevance of
the fact that many petitioners are citizens of friendly nations who were not captured
during battle. The dissenters also viewed it as unlikely that further treatment by the
lower courts might elucidate the issues, given that the MCA limits jurisdiction to the
Court of Appeals for the D.C. Circuit, which has already indicated that Guantanamo
detainees have no constitutional rights. Justices Breyer and Souter would have
granted expedited consideration.
Justice Stevens, joined by Justice Kennedy, wrote a statement explaining their
view that, “despite the obvious importance of this issues raised,” the petitioners
should first exhaust remedies available under the DTA unless the petitioners can
show that the government is causing delay or some other ongoing injury that would
make those remedies inadequate. In the event of such injury, Justice Stevens wrote
that “alternative means exist [for the Court] to consider [its] jurisdiction over the
allegations...,”118 possibly indicating that at least these two Justices do not believe the
MCA curtails such jurisdiction.
Given the views expressed by five Justices regarding the denial of certiorari, it
seems likely that at least four Justices, the number required for a grant of certiorari,
would vote to undertake a review of issues related to the MCA should another
opportunity present itself. Such an opportunity seems inevitable unless an
intervening act on the part of the President, Congress, or both renders the issues
moot.
Legislation. Two bills have been introduced in the House of Representatives
to amend the habeas provisions in the DTA. The Military Commissions Habeas
115 Boumediene, slip op. at 15 (Rogers, J., dissenting))(citing Sierra Club v. EPA, 322 F.3d
718, 724 (D.C. Cir. 2003)).
116 See id. at 18-19 (“The detainees do not here contend that the Constitution accords them
a positive right to the writ but rather that the Suspension Clause restricts Congress’s power
to eliminate a preexisting statutory right.”).
117 Boumediene v. Bush, 549 U.S. __ (2007).
118 Boumediene v. Bush, 549 U.S., slip op. at 2 (citing the All Writs Act, 28 U.S.C. § 1651,
and the habeas corpus statute, 28 U.S.C. § 2241).
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Corpus Restoration Act of 2007, H.R. 267, would repeal subsection (e) of 28 U.S.C.
§ 2241. The bill would add a new section 1632 to title 28 providing that no court has
jurisdiction to hear cases against the United States or its agents by aliens detained as
enemy combatants except for the reviews provided in the DTA and habeas corpus
petitions. H.R. 1189, The Habeas Corpus Preservation Act, would provide that the
MCA is to be construed to avoid any effect on the right of any U.S. resident to
habeas corpus.
Two bills have been introduced in the Senate. S. 185, the Habeas Corpus
Restoration Act, would repeal subsection (e) of 28 U.S.C. § 2241, but would amend
10 U.S.C. § 950j so that court jurisdiction would continue to be unavailable for
detainees seeking to challenge military commission, except through the limited
procedures under the DTA, as amended, and “as otherwise provided in [chapter 47a
of title 10, U.S. Code] or in section 2241 of title 28 or any other habeas corpus
provision.” A companion bill, H.R. 1416, has been introduced in the House.
S. 576, the Restoring the Constitution Act of 2007, and its companion bill, H.R.
1415, would amend the definition of “unlawful enemy combatant” in the MCA, 10
U.S.C. § 948a, to mean an individual who is not a lawful combatant who “directly
participates in hostilities in a zone of active combat against the United States,” or
who “planned, authorized, committed, or intentionally aided the terrorist acts on the
United States of September 11, 2001” or harbored such a person. A status
determination by a CSRT or other tribunal would no longer be dispositive of status
under 10 U.S.C. § 948d. The bills would also expressly restrict the definition of
“unlawful enemy combatant” for use in designating individuals as eligible for trial
by military commission. They would repeal 28 U.S.C. § 2241(e), but limit other
causes of action related to the prosecution, trial, and decision of a military
commission. DTA provisions related to the limited review of status determinations
and final decisions of military commissions would be eliminated, and appeals of
military commissions would be routed to the Court of Appeals for the Armed Forces.
H.R. 1415 would expand the scope of that review to include questions of fact. With
respect to the Geneva Conventions, the bills would eliminate the MCA provision
excluding their invocation as a “source of rights” by defendants (10 U.S.C. §
948b(g)), replacing it with a provision that military commission rules determined to
be inconsistent with the Geneva Conventions are to have no effect. They would also
add a reference to the effect that the President’s authority to interpret the Geneva
Conventions is subject to congressional oversight and judicial review. Finally, the
bills would provide for expedited challenges to the MCA in the D.C. district court.
(Provisions amending the War Crimes Act or military commission procedures are not
covered in this report.)
Constitutional Considerations
It seems likely that the Supreme Court will have occasion to address whether the
DTA violates the Constitution’s Suspension Clause (article I, § 9, cl. 2) or exceeds
Congress’s authority to regulate the jurisdiction of federal courts. The Hamdan Court
interpreted the DTA provision revoking the privilege of habeas corpus as
inapplicable to the case before it. Because the petitioner was not challenging a final
decision of a military commission, the Court reasoned that the DTA provision
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revoking jurisdiction over pending cases involving such decisions did not apply. The
Court did not address the effect of the DTA on cases that were pending at the time
of enactment and that would have been covered under the DTA’s provisions
regarding final review of Combatant Status Review Tribunals, thus avoiding having
to address the constitutionality of the DTA’s habeas provisions. In enacting the
MCA, Congress amended the DTA specifically to revoke habeas corpus jurisdiction
over all cases involving aliens detained as enemy combatants or awaiting such
determination. So far, federal courts have upheld the habeas provision and dismissed
petitions for habeas corpus based on the DTA as amended, finding that the
revocation of their jurisdiction over such petitions does not amount to a suspension
of the Writ.119 The Supreme Court has so far denied petitions to review these
decisions.120
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.121 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.122 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.123 Minor
irregularities in trial procedures that do not amount to violations of fundamental
constitutional rights are generally to be addressed on direct appeal.124
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.
119 Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007); Hamdan v. Rumsfeld, 464
F.Supp.2d 9 (D. D.C. 2006).
120 Hamdan v. Gates, 549 U.S. __ (2007) (denying petition to expedite consideration for
certiorari); Boumediene v. Bush, 549 U.S. __ (2007).
121 For a general background and description of related writs, see 39 AM. JUR. 2d. Habeas
Corpus § 1 (1999).
122 See generally S. DOC. NO. 108-17 at 848 et seq.
123 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.”).
124 39 AM. JUR. 2d. Habeas Corpus § 27 (1999).
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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 DTA 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,125 it has been explained that the Constitution obligates
Congress to provide “efficient means by which [the Writ] should receive life and
activity.”126 While the Court has stated that “at the absolute minimum, the
Suspension Clause protects the writ ‘as it existed in 1789,’”127 it has also presumed
that “the Suspension Clause of the Constitution refers to the writ as it exists today,
rather than as it existed in 1789.”128 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.129 In particular, even if Congress is found
to have suspended the Writ, the Court may be reticent to give up the authority of the
judicial branch to decide whether the suspension applies to a particular case.130
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:
125 Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807).
126 Id. at 94.
127 Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289, 301 (U.S. 2001).
128 Felker v. Tupin, 518 U.S. 663 (1996)(citing Swain v. Pressley, 430 U.S. 372 (1977)).
129 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).
130 See ex parte Milligan, 71 U.S. (4 Wall.) 2, 115-16 (1866); cf. ex parte Quirin, 317 U.S.
1, 24-25 (1942)(dismissing contention that presidential proclamation stripped Court of
authority to review case, stating that “nothing in the Proclamation precludes access to the
courts for determining its applicability to the particular case”).
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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.131
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.132 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 over Civil War cases, leaving open the question whether such an effort
would have amounted 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
federal habeas relief,133 yet it remains unclear whether Congress is free to revoke
such jurisdiction without effecting a suspension of the Writ. In Felker v. Turpin,134
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 DTA 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 the
United States as “enemy combatants.” As the act is implemented, 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.
The enactment of legislation to deny the rights of all aliens in U.S. custody, whether
held abroad or within the United States, to petition for habeas corpus, it may bring
the Court to clarify a question it did not resolve in Rasul, namely, whether that
131 Ex parte McCardle, 74 U.S. (7 Wall.) 506, 515 (1868).
132 Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1869).
133 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).
134 518 U.S. 651 (1996).
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decision extended beyond Guantanamo Bay to other U.S. prisons abroad where the
United States does not exercise exclusive jurisdiction and control.135
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 DTA, 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 DTA 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
in Rasul found that the Guantanamo detainees had a statutory right to petition a
federal district court for a writ of habeas corpus136 based on claims that they are held
“in custody in violation of the Constitution or laws or treaties of the United States.”137
In general, writs of habeas corpus are available as a means of challenging the fact or
length of a detention or incarceration.138 The DTA appears intended to prohibit
detainees from utilizing this particular statutory procedure to bring cases into court.139
Thus, the question arises as to whether there are alternate procedural routes by
which detainees could bring suits challenging the fact or length of their detention.
Under the DTA, the United States Court of Appeals for the District of Columbia
135 The President has indicated that all “high-value detainees” previously held in undisclosed
prisons in Eastern European countries and elsewhere have been transferred to Guantanamo,
but has not foreclosed the possibility that suspected terrorists captured in the future will be
held for interrogation in other countries.
136 28 U.S.C. §§ 2241(a), (c)(3).
137 Rasul v. Bush, 542 U.S. 466 (2004).
138 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. 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).
139 As discussed above, there may be limits to the extent to which the writ of habeas corpus
may be suspended.
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Circuit has exclusive jurisdiction to determine the validity of decisions by a CSRT
that a detainee is an enemy combatant and to review final decisions of military
commissions convicting detainees of violations of the law of war. The D.C.
Circuit’s jurisdiction does include constitutional review of whether the standards and
procedures utilized in the military proceedings below were consistent with the
Constitution and laws of the United States.
Conditions of Detention. 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 confinement140 when they can be
transferred,141 or whether they can have contact with relatives.142 Although some of
these were brought as habeas corpus cases,143 Guantanamo detainees have also
sought relief from the courts using the All Writs Act,144 principally to prevent their
transfer to other countries without notice,145 but for other reasons too.146 Use of the
All Writs Act by a court is an extraordinary remedy, generally not invoked if there
is an alternative remedy available.147
Prisoners in federal prison, acting under a district court’s general jurisdiction to
consider claims arising under the Constitution,148 have also sought writs of
mandamus149 to obtain changes in prison conditions.150 These writs, which are
140 Paul Shukovsky, Terrorism Suspect’s Suit Tells of U.S. Abuse: Documents in
Guantanamo Case Describe Extreme Isolation, SEATTLE POST-INTELLIGENCER, Aug. 6,
2004, at A1.
141 Al-Anazi v. Bush, 370 F. Supp. 2d 188 (D. D.C. 2005).
142 Josh White, Lawyers Seek Improved Conditions for Suicidal Detainee, WASH. POST,
Nov. 5, 2005, at A8.
143 See, e.g., In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 480-81 (D. D.C.
2005)(rejecting claims on other grounds).
144 All Writs Act, 28 U.S.C. § 1651.
145 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).
146 See El-Banna v. Bush, 2005 U.S. Dist. LEXIS 16880 (2005) (seeking preservation of
records relating to treatment of detainees).
147 Al-Anazi v. Bush, 370 F. Supp. 2d 188, 196 (D. D.C. 2005).
148 28 U.S.C. § 1331. See Caldwell v. Miller, 790 F.2d 589 (7th Cir. 1986).
149 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).
150 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
(continued...)
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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,151 Sixth Amendment,152 Eighth Amendment153 and various other
grounds.154 To the extent that these alternates writs are not cut off by the DTA,155 they
might offer an alternative route to challenge conditions of detention.156
Finally, it is possible that the detainees in Guantanamo could have attempted to
bring a Bivens action for damages against relevant government officials.157 In Bivens
v. Six Unknown Federal Narcotics Agents,158 the Supreme Court has held that suits
can be brought against federal government officials directly under the Constitution
for violations of 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.159 Again, this remedy is most likely to be
available where Congress has not provided an adequate remedy for constitutional
150 (...continued)
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).
151 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).
152 Stover v. Carlson, 413 F. Supp. 718 (D. Conn. 1976) (ending federal prison practice of
opening privileged communications outside of prisoner’s presence).
153 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).
154 See generally Donaldson, supra note 149.
155 P.L. 109-148, § 1005(e) (as amended) (prohibiting “any other action against the United
States or its agents relating to any aspect of the detention, transfer, treatment, trial, or
conditions of confinement of an alien who is or was detained by the United States and has
been determined by the United States to have been properly detained as an enemy combatant
or is awaiting such determination”).
156 Housley v. United States, 1992 U.S. App. LEXIS 26368 (9th Cir.). But 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).
157 See JOHN BOSTON AND 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).
158 403 U.S. 388 (1971).
159 Carlson v. Green, 446 U.S. 14 (1980)(Court allowed a Bivens action against federal
prison officials for failing to provide adequate medical treatment).
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violations.160 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.
Statements regarding the DTA, however, indicate that its sponsors anticipated
that the act would limit the ability of detainees to seek redress regarding the
conditions of their detention.161 The language of the DTA itself appears to cut off all
court jurisdiction for detainees except for limited review of the fact of detention.162
The DTA itself appears to provide no opportunity for a court to review issues related
to detention, thus arguably banning challenges to conditions of detention such as
cases based on the Eighth Amendment ban on cruel and unusual punishment.
Congressional Authority over Federal Courts
As noted, sponsors of the DTA have indicated that its intent 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. If
it is determined that no procedure is available to vindicate constitutional rights, then
it might be argued that the Congress’s limitation on the use of habeas corpus or other
avenues of redress by the detainees is an unconstitutional limitation.
The Constitution contains few requirements regarding the jurisdiction of the
federal courts. Article III, Section 1, of the Constitution provides that
The judicial Power of the United States, shall be vested in one supreme Court,
and in such inferior Courts as the Congress may from time to time ordain and
establish.163 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,164 nothing else about the Court’s structure and operation is set
160 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.
161 See 151 Cong. Rec. S12752-54 (daily ed. November 14, 2005)(statement of Senator
Lindsay Graham).
162 DTA, § 1005(e) (codified at 28 U.S.C. 2241(e)).
163 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.”
164 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
(continued...)
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forth, leaving the size and composition of the Court, as well as the specifics, if any,
of the lower federal courts, to Congress.165 Utilizing its power to establish inferior
courts, Congress has also created the United States district courts,166 the courts of
appeals for the thirteen circuits,167 and other federal courts.168
On its face, there is no limit on the power of Congress to make exceptions to or
otherwise regulate the Supreme Court’s appellate jurisdiction, to create inferior
federal courts, or to specify their jurisdiction. However, the same is true of the
Constitution’s other grants of legislative authority in Article I and elsewhere, which
does not prevent the application of other constitutional principles to those powers.
“[T]he Constitution is filled with provisions that grant Congress or the States specific
power to legislate in certain areas,” Justice Black wrote for the Court in a different
context, but “these granted powers are always subject to the limitations that they may
not be exercised in a way that violates other specific provisions of the
Constitution.”169 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.”170
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.171 Nor, without amendment of the
Constitution, could Congress provide that the courts may take property while denying
164 (...continued)
that Purpose, they shall be on oath or affirmation. When the President of the
United States is tried, the Chief Justice shall preside: and no Person shall be
convicted without Concurrence of two-thirds of the Members present.
165 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.
166 28 U.S.C. §§ 81-131, 132.
167 28 U.S.C. §§ 41, 43 (District of Columbia Circuit, First Circuit through Eleventh Circuit,
Federal Circuit).
168 See, e.g., 28 U.S.C. §§ 151 (U.S. bankruptcy courts); 251 (U.S. Court of International
Trade).
169 Williams v. Rhodes, 393 U.S. 23, 29 (1968).
170 United States v. Bitty, 208 U.S. 393, 399-400 (1908).
171 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.172 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; that is, the
“legislative power” is vested in Congress, the “executive power” is vested in the
President, and the “judicial power” is vested in the Supreme Court and the inferior
federal courts. That interpretation is also consistent with the speeches and writings
of the framers. Beginning with Buckley v. Valeo,173 the Supreme Court has
reemphasized separation of powers as a vital element in American federal
government.174
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,175 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.176 More recently, the doctrine of separation of
172 The Fifth Amendment provides that no “private property [ ] be taken for public use
without just compensation.”
173 424 U.S. 1, 109-43 (1976).
174 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).
175 2 U.S. (2 Dall.) 409 (1792). This case was not actually decided by the Supreme Court,
but by several Justices on circuit.
176 Those principles remain vital. See, e.g., Chicago & S. Air Lines v. Waterman S. S. Corp.,
333 U.S. 103, 113-14 (1948)(“Judgments within the powers vested in courts by the Judiciary
Article of the Constitution may not lawfully be revised, overturned or refused faith and
(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.177
Allocation of court jurisdiction by Congress is complicated by the presence of
state court systems that can and in some cases do hold concurrent jurisdiction over
cases involving questions of federal statutory and constitutional law. Thus, the
power of Congress over the federal courts is really the power to determine how
federal cases are to be allocated among state courts, federal inferior courts, and the
United States Supreme Court. Congress has significant authority to determine which
of these various courts will adjudicate such cases, and the method by which this
adjudication will occur. For most purposes, the exercise of this power is relatively
noncontroversial.
As regards the DTA, however, there appears to be little chance of state courts
exercising jurisdiction over the detainees in Guantanamo Bay.178 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. To
the extent that the DTA cuts off court jurisdiction over cases involving aliens
detained within U.S. territory, however, state courts might be able to assert
jurisdiction. 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 seem 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 decisions179
under the Fair Labor Standards Act of 1938180 exposed employers to $5 billion
dollars in damages, and the United States itself was threatened with liability for over
176 (...continued)
credit by another Department of Government.”); Connor v. Johnson, 402 U.S. 690 (1971).
177 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).
178 The DTA provides that 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
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.
179 See, e.g., Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944).
180 29 U.S.C. §§ 201-219.
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$1.5 billion. Subsequently, Congress enacted the Portal to Portal Act of 1947,181
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....”182 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.183
The Supreme Court has not directly addressed whether there must exist a
judicial forum to vindicate all constitutional rights. Justice Scalia has pointed out that
there are particular cases, such as political questions cases, where all constitutional
review is in effect precluded.184 Other commentators point to sovereign immunity
and the ability of the government to limit the remedies available to plaintiffs.185
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.186 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. Although the extent of constitutional rights enjoyed by aliens outside the
territory of the United States is subject to continuing debate, the right of aliens within
the United States to liberty except when restricted in accordance with due process of
law seems well-established.
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 DTA may be Congress’s first effort to impose limits on the
President’s conduct of the Global War on Terrorism and to prescribe a limited role
for the courts. The MCA provides the President the authority to conduct military
commissions and further limits the availability of judicial review. While the
Supreme Court so far has denied review to Guantanamo detainees whose habeas
181 29 U.S.C. §§ 251-262.
182 Battaglia v. General Motors Corp., 169 F.2d 254, 257 (2d Cir. 1948).
183 See, e.g., Webster v. Doe, 486 U.S. 592 (1988).
184 486 U.S. at 612-13 (Scalia, J., dissenting).
185 Bartlett v. Bowen, 816 F.2d 695, 719-720 (1987)(Bork, J., dissenting).
186 First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S.
304 (1987).
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petitions were dismissed pursuant to the MCA, it seems likely that, absent a change
to the detention policy that would render the dispute moot, the Supreme Court will
again be asked to address the validity of MCA provisions that restrict the jurisdiction
of federal courts.
Document Outline