Order Code RL33180
Enemy Combatant Detainees:
Habeas Corpus Challenges in Federal Court
Updated January 28, 2008
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 access to federal courts by
“alien enemy combatants,” wherever held, by eliminating pending and future causes
of action other than the limited review of military proceedings permitted under the
DTA. The Court of Appeals for the D.C. Circuit dismissed the Guantanamo
detainees’ habeas petitions on the basis of the DTA, as amended. The Court has
granted certiorari to hear Boumediene v. Bush to determine whether the MCA is valid
under the Suspension Clause (U.S. Const. Art. 1, § 9, cl. 2), which may include a
determination of 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. Pertinent legislation includes H.R. 267,
S. 185, S. 576, S. 1547, S. 1548, H.R. 1415, H.R. 1416, H.R. 1585, H.R. 4986, H.R.
1189, H.R. 2543, H.R. 2710, H.R. 2826, S. 1249 and H.R. 2212.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Rasul v. Bush . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Combatant Status Review Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Court Challenges to the Detention Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Khalid v. Bush . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
In re Guantanamo Detainee Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Hamdan v. Rumsfeld . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Presidential Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
The Geneva Conventions and the Law of War . . . . . . . . . . . . . . . . . . 14
Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Al-Marri v. Wright . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Detainee Treatment Act of 2005 (DTA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
The Military Commissions Act of 2006 (MCA) . . . . . . . . . . . . . . . . . . . . . . . . . 19
Provisions Affecting Court Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Provisions Regarding the Geneva Conventions . . . . . . . . . . . . . . . . . . . . . . 21
Post-MCA Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Possible Application to U.S. Citizens . . . . . . . . . . . . . . . . . . . . . . . . . 24
Boumediene v. Bush . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Bismullah v. Gates/Parhat v. Gates . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Al-Marri v. Wright . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Constitutional Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
The Suspension of Habeas Corpus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Limiting Court Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
The Fact and Length of Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Conditions of Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Congressional Authority over Federal Courts . . . . . . . . . . . . . . . . . . . . . . . 40
Separation of Powers Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Eliminating Federal Court Jurisdiction Where There Is
No State Court Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Enemy Combatant Detainees:
Habeas Corpus Challenges in Federal Court
Introduction
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
1 542 U.S. 507 (2004).
2 542 U.S. 466 (2004).
CRS-2
authority to detain individuals in connection with antiterrorism operations, and did
not resolve whether the petitioner could claim prisoner-of-war (POW) status, but held
that “in undertaking to try Hamdan and subject him to criminal punishment, the
Executive is bound to comply with the Rule of Law that prevails in this 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 initially 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. In June, however, the Supreme
Court vacated its earlier denial and granted the petition on the petitioners’ motion to
reconsider.6
The U.S. Court of Appeals for the Fourth Circuit granted habeas relief to a
resident alien who was arrested in Illinois on criminal charges but then transferred
to South Carolina and detained in military custody as an “enemy combatant.”7 While
one judge on the panel dissented with respect to the holding that the detention was
not authorized by Congress, all three judges on the panel agreed that the MCA did
not divest it of jurisdiction to hear the petition, notwithstanding the MCA’s lack of
geographical limits. The government is expected to ask for a rehearing en banc.
Unless Congress or the President takes some action to alter the MCA or resolve
the petitioners’ complaints, the Supreme Court will, in its upcoming term, weigh
constitutional issues with respect to the Suspension Clause (U.S. Const. Art. 1, § 9,
cl. 2), perhaps determining whether the provision amounts to an impermissible
“court-stripping” measure to deprive the Supreme Court of jurisdiction over matters
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).
6 Boumediene v. Bush, 551 U.S. __ (2007).
7 Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007).
CRS-3
of law entrusted to it by the Constitution or whether the alternative procedures
provided in the MCA are an adequate substitute for the Writ.
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.
Background
The White House determined in February 2002 that Taliban detainees are
covered under the Geneva Conventions,8 while Al Qaeda detainees are not,9 but that
none of the detainees qualifies for the status of prisoner of war (POW).10 The
Administration deemed all of them to be “unlawful enemy combatants,” and claimed
the right to detain them without trial or continue to hold them even if they are
acquitted by a military tribunal. Fifteen of the detainees had been determined by the
President to be subject to his military order (“MO”) of November 13, 2001,11 making
them eligible for trial by military commission.12 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).13 The following sections trace the judicial developments
with respect to the detention of alleged enemy combatants.
8 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, August 12, 1949,
6 U.S.T. 3516 (hereinafter “GC”).
9 White House Memorandum, “Humane Treatment of al Qaeda and Taliban Detainees”
(February 7, 2002), available at [http://www.washingtonpost.com/wp-srv/nation/documents/
020702bush.pdf].
10 For more history and analysis, see CRS Report RL31367, Treatment of ‘Battlefield
Detainees’ in the War on Terrorism, by Jennifer K. Elsea.
11 Order on Detention, Treatment, and Trial of Certain Non-Citizens in the War against
Terrorism, November 13, 2001, 66 Federal Register 57833 (2001)(hereinafter “MO” or
“military order”).
12 For an analysis of the military commission rules, see CRS Report RL33688, The Military
Commissions Act of 2006: Analysis of Procedural Rules and Comparison with Previous
DOD Rules and the Uniform Code of Military Justice, by Jennifer K. Elsea.
13 10 U.S.C. § 801 et seq.
CRS-4
Rasul v. Bush14
Petitioners were two Australians and twelve Kuwaitis (a petition on behalf of
two U.K. citizens was mooted by their release) who were captured during hostilities
in Afghanistan and were being held in military custody at the Guantanamo Bay Naval
Base, Cuba. The Administration argued, and the court below had agreed, that under
the 1950 Supreme Court case Johnson v. Eisentrager,15 “‘the privilege of litigation’
does not extend to aliens in military custody who have no presence in ‘any territory
over which the United States is sovereign.’” The Court distinguished Rasul by noting
that Eisentrager concerned the constitutional right to habeas corpus rather than the
right as implemented by statute. The Rasul Court did not reach the constitutional
issue, but found authority for federal court jurisdiction in 28 U.S.C. § 2241, which
grants courts the authority to hear applications for habeas corpus “within their
respective jurisdictions,” by any person who claims to be held “in custody in
violation of the Constitution or laws or treaties of the United States.”16
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
14 542 U.S. 466 (2004).
15 339 U.S. 763 (1950).
16 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.
CRS-5
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.”17 The Rasul Court noted that the Guantanamo
petitioners, in contrast, “are not nationals of countries at war with the United States,
and they deny that they have engaged in or plotted acts of aggression against the
United States; they have never been afforded access to any tribunal, much less
charged with and convicted of wrongdoing; and for more than two years they have
been imprisoned in territory over which the United States exercises exclusive
jurisdiction and control.”
As to the petitioners’ claims based on statutes other than the habeas statute,
which included the federal question statute18 as well as the Alien Tort Statute,19 the
Court applied the same reasoning to conclude that nothing precluded the detainees
from bringing such claims before a federal court.20
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.21 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.22 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.’”
17 Rasul, 542 U.S. at 475 (citing Eisentrager, 339 U.S. at 777).
18 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.”).
19 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.”).
20 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”).
21 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).
22 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”).
CRS-6
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
traditional wars.23 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.”24 CSRTs have
confirmed the status of at least 520 enemy combatants. Any new detainees that
might be transported to Guantanamo Bay will go before a CSRT. The CSRTs are not
empowered to determine whether the enemy combatants are unlawful or lawful,
which led two military commission judges to hold that CSRT determinations are
inadequate to form the basis for the jurisdiction of military commissions.25 Military
commissions must now determine whether a defendant is an unlawful enemy
combatant in order to assume jurisdiction.
The tribunals are administrative rather than adversarial, but each detainee has
an opportunity to present “reasonably available” evidence and witnesses26 to a panel
23 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.
24 See DOD Press Release, “Combatant Status Review Tribunal Order Issued” (June 7,
2004), available at [http://www.defenselink.mil/releases/2004/nr20040707-0992.html];
Memorandum from the Deputy Secretary of Defense to the Secretary of the Navy, Order
Establishing Combatant Status Review Tribunal, July 7, 2004 (hereinafter “CSRT Order”),
available at [http://www.defenselink.mil/news/Jul2004/d20040707review.pdf];
Memorandum from Deputy Secretary of Defense, Implementation of Combatant Status
Review Tribunals Procedures for Enemy Combatants Detained at U.S. Naval Base
Guantanamo Bay, Cuba, July 14, 2006 (hereinafter “CSRT Implementing Directive”),
available at [http://www.defenselink.mil/news/Aug2006/d20060809CSRTProcedures.pdf].
25 See Josh White and Shailagh Murray, Guantanamo Ruling Renews The Debate Over
Detainees, WASH. POST, June 6, 2007, at A3.
26 Witnesses from within the U.S. Armed Forces are not “reasonably available” if their
participation, as determined by their commanders, would adversely affect combat or support
operations. CSRT Implementing Directive, supra note 24, at encl. 1, para. G(9)(a). All
(continued...)
CRS-7
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.”27 Each detainee is represented by a military
officer (not a member of the Judge Advocate General (“JAG”) Corps)28 and may elect
to participate in the hearing or remain silent.29 The government’s evidence is
presented by the recorder, who is a military officer, preferably a judge advocate.30
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.”31 The
government is required to present all of its relevant evidence, including evidence that
tends to negate the detainee’s designation, to the tribunal.32 The CSRT is required
to assess, “to the extent practicable, whether any statement derived from or relating
to such detainee was obtained as a result of coercion and the probative value, if any,
of any such statement.”33 Unclassified summaries of relevant evidence may be
provided to the detainee.34 The detainee’s personal representative may view
classified information and comment on it to the tribunal to aid in its determination35
26 (...continued)
other witnesses, apparently including those from other agencies, are not “reasonably
available” if they decline to attend or cannot be reached, or if security considerations
prevents their presence. Id. at para. G(9)(b). It is unclear who makes the security
determination. Non-government witnesses appear at their own expense. Testimony is under
oath and may be provided in writing or by telephone or video.
27 CSRT Order, supra note 24, at 1.
28 CSRT Implementing Directive, supra note 24, at encl. 1, para. B.
29 Id. at para. F.
30 Id at para. C(2). In an affidavit submitted in DTA litigation, the government
acknowledged that it has utilized the procedures set forth in the CSRT Implementing
Directive. See Bismullah v. Gates, Nos. 06-1197 and 06-1397, slip op. at 3 (D.C. Cir. July
20, 2007) (order on motions) (Rogers, J. Concurring) (citing differences between written
procedures and those described by Rear Admiral James M. McGarrah in the Boumediene
case). Rather than having a JAG officer in the rank of O-3 or above compile government
information, the Department of Defense has utilized research, collection, and coordination
teams to gather information to be assessed by a “case writer” who has “received
approximately two weeks of training.” Id. at 4. Thus, the reporter assigned to represent the
government’s case may not have had access to all government information.
31 Id. at para. G(7) & (11).
32 Id. at para. G(8).
33 Id. at encl. 10.
34 Id. at encl. 1, para. E(3)(a).
35 Id. at para. H(7).
CRS-8
but does not act as an advocate for the detainee.36 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).37
In March 2002, the Pentagon announced plans to create a separate process for
periodically reviewing the status of detainees.38 The process, similar to the CSRT
process, affords persons detained at Guantánamo Bay the opportunity to present to
a review board, on at least an annual basis while hostilities are ongoing, information
to show that the detainee is no longer a threat or that it is in the interest of the United
States and its allies to release the prisoner. If new information with a bearing on the
detainee’s classification as an “enemy combatant” comes to light, a new CSRT may
be ordered using the same procedures as described above.39 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. Eisentrager40 remains applicable to limit the relief to which
the detainees may be entitled. While more than one district judge from the D.C.
36 Id. at encl. 2, para. D (the personal representative is required to explain to the represented
detainee that he or she is neither the attorney or advocate for the detainee, and that any
information provided by the detainee is not confidential).
37 Id. at encl. 1, para. I(9)-(10).
38 See DOD Press Release, “DoD Announces Draft Detainee Review Policy” (March 3,
2004), available at [http://www.defenselink.mil/releases/2004/nr20040303-0403.html];
Memorandum from Deputy Secretary of Defense, Revised Implementation of
Administrative Review Procedures for Enemy Combatants Detained at U.S. Navy Base,
Guantanamo Bay, Cuba (July 14, 2006), available at [http://www.defenselink.mil/news/
Aug2006/d20060809ARBProceduresMemo.pdf].
39 CSRT Implementing Directive, supra note 24, at encl. 10 (implementing Detainee
Treatment Act provisions).
40 339 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”).
CRS-9
Circuit agreed,41 others did not, holding for example that detainees have the right to
the assistance of an attorney.42 One judge found that a detainee has the right to be
treated as a POW until a “competent tribunal” decides otherwise,43 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.44
Khalid v. Bush45
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),46 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,47 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.”48
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,49 and gives the President virtually
unlimited authority to exercise his war power wherever enemy combatants are
found.50 The circumstances behind the off-battlefield captures did, however,
41 Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005); Hamdan v. Rumsfed, 464 F. Supp.2d
9 (D.D.C. 2006).
42 Al Odah v. United States, 346 F. Supp. 2d 1 (D.D.C. 2004).
43 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).
44 Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007).
45 355 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).
46 Authorization for Use of Military Force (“the AUMF”), P.L. 107-40, 115 Stat. 224 (2001).
47 Although the MO authorized detention as well as trial by military commissions, only
fifteen of the detainees were formally designated as subject to the MO.
48 355 F. Supp. 2d at 314.
49 Id. at 320.
50 Id. at 318. Judge Leon wrote:
The President’s ability to make the decisions necessary to effectively prosecute a
(continued...)
CRS-10
apparently preclude the petitioners from claiming their detentions violate the Geneva
Conventions.51 Other treaties put forth by the petitioners were found to be unavailing
because of their non-self-executing nature.52
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.”53 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 Cases54
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.55 Judge Green
rejected the government’s stance that the CSRTs provided more than sufficient due
50 (...continued)
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.
51 Id. at 326.
52 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,
considering but rejecting the habeas claim that the treaty vitiated jurisdiction of military
commission).
53 Id. at 330 (citations omitted).
54 355 F. Supp. 2d 443 (D.D.C. 2005), vacated and dismissed sub nom. Boumediene v. Bush,
476 F.3d 981 (D.C. Cir.), cert. granted 549 U.S. __ (2007).
55 Id. at 465 (citing Hamdi v. Rumsfeld).
CRS-11
process for the detainees. Instead, she identified two categories of defects. She
objected to the CSRTs’ failure to provide the detainees with access to material
evidence upon which the tribunal affirmed their “enemy combatant” status and the
failure to permit the assistance of counsel to compensate for the lack of access.
These circumstances, she said, deprived detainees of a meaningful opportunity to
challenge the evidence against them.
Second, in particular cases, the judge found that the CSRTs’ handling of
accusations of torture and the vague and potentially overbroad definition of “enemy
combatant” could violate the due process rights of detainees. Citing detainees’
statements and news reports of abuse, Judge Green noted that the possibility that
evidence was obtained involuntarily from the accused or from other witnesses,
whether by interrogators at Guantanamo or by foreign intelligence officials
elsewhere, could make such evidence unreliable and thus constitutionally
inadmissible as a basis on which to determine whether a detainee is an enemy
combatant. Judge Green objected to the definition of “enemy combatant” because
it appears to cover “individuals who never committed a belligerent act or who never
directly supported hostilities against the U.S. or its allies.” She noted that
government counsel had, in response to a set of hypothetical questions, stated that the
following could be treated as enemy combatants under the AUMF: “[a] little old lady
in Switzerland who writes checks to what she thinks is a charity that helps orphans
in Afghanistan but [what] really is a front to finance al-Qaeda activities, a person
who teaches English to the son of an al Qaeda member, and a journalist who knows
the location of Osama Bin Laden but refuses to disclose it to protect her source.”56
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.57
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 actions with respect to 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,58 arguing that the military commission rules and
procedures were inconsistent with the UCMJ59 and that he had the right to be treated
56 Id. at 475 (internal citations omitted).
57 Id. at 476.
58 344 F. Supp. 2d 152 (D.D.C. 2004), 415 F.3d 33 (D.C. Cir. 2005), rev’d 548 U.S. __ (2006).
59 10 U.S.C. §§ 801 et seq.
CRS-12
as a prisoner of war under the Geneva Conventions.60 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,61
and that Hamdan was thus entitled to be treated as a prisoner of war until his status
was determined to be otherwise by a competent tribunal, in accordance with article
5 of the Third Geneva Convention (prisoners of war).
The D.C. Circuit Court of Appeals reversed, ruling that the Geneva Conventions
are not judicially enforceable. Judge Williams wrote a concurring opinion,
construing Common Article 3 to apply to any conflict with a non-state actor,62
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),63 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.64 The
60 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”).
61 344 F. Supp. 2d at 161.
62 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.
63 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.
64 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
(continued...)
CRS-13
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,65 noting the dissimilarities between military
commission trials and ordinary courts-martial of service members pursuant to
procedures established by Congress.66 The government’s argument that the petitioner
had no rights conferred by the Geneva Conventions that could be adjudicated in
federal court likewise did not persuade the Court to dismiss the case. Regardless of
whether the Geneva Conventions provide rights enforceable in Article III courts, the
Court found that Congress, by incorporating the “law of war” into UCMJ article 21,67
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.”68 It disagreed with the government’s position that
Congress had authorized the commissions either when it passed the Authorization to
Use Military Force (AUMF)69 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.”70
64 (...continued)
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.
65 Id. at 20. The court below had also rejected this argument, 413 F.3d 33, 36 (D.C. Cir.
2005).
66 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....”).
67 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.”)
68 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.).
69 P.L. 107-40, 115 Stat. 224 (2001).
70 Hamdan, slip op. at 30.
CRS-14
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.71 The D.C. Circuit
nevertheless held that the Geneva Conventions are never enforceable in federal
courts.72 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.”73 In response
to the alternative holding by the court below that Hamdan, as a putative member of
al Qaeda, was not entitled to any of the protections accorded by the Geneva
Conventions, the Court concluded that Common Article 3 of the Geneva
Conventions applies even to members of al Qaeda, according to them a minimum
baseline of protections, including protection from the “passing of sentences and the
carrying out of executions without previous judgment pronounced by a regularly
constituted court, affording all the judicial guarantees which are recognized as
indispensable by civilized peoples.”74
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.75 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”
71 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”).
72 See 415 F.3d at 39 (citing Johnson v. Eisentrager, 339 U.S. 763, 789, n. 14).
73 Hamdan, slip op. at 63.
74 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.
75 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.
CRS-15
(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.
The opinion reaffirms the holding in Rasul v. Bush76 that the AUMF does not
provide the President a “blank check,” and, by finding in favor of a noncitizen held
overseas, seems to have expanded the Hamdi comment that
[w]hatever power the United States Constitution envisions for the Executive in
its exchanges with other nations or with enemy organizations in times of
conflict, it most assuredly envisions a role for all three branches when individual
liberties are at stake.77
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.78 Expressly or implicitly, all eight participating
Justices applied the framework set forth by Justice Jackson in his famous
concurrence in the Steel Seizures case,79 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.80 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
76 542 U.S. 466 (2004).
77 542 U.S. 507, 535 (2004).
78 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).
79 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
80 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.
CRS-16
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
Appeals for the Seventh Circuit,81 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.82 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.83
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.”84 The U.S. Court of Appeals for
the Fourth Circuit reversed, after determining that the habeas restrictions Congress
enacted in the DTA, as amended by the MCA, did not apply. The appellate court
decision is addressed below.
81 Al-Marri v. Rumsfeld, 360 F.3d 707 (7th Cir. 2004), cert. denied 543 U.S. 809 (2004).
82 Al-Marri v. Hanft, 378 F. Supp.2d 673 (D. S.C. 2005) (order denying summary judgment).
83 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).
84 Id. at 778-80.
CRS-17
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,85 and expressly bans cruel, inhuman, or degrading treatment
of detainees in the custody of any U.S. agency.86 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.87 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.88 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.89 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.”90
The DTA also includes a modified version of the “Graham-Levin
Amendment,”91 which requires the Defense Department to submit to the Armed
85 Section 1002 of P.L. 109-148 requires DOD to follow the Army Field Manual for
intelligence interrogation. See DEPARTMENT OF THE ARMY FIELD MANUAL 34-52,
INTELLIGENCE INTERROGATION (1992), available at [http://www4.army.mil/ocpa/reports/
ArmyIGDetaineeAbuse/FM34-52IntelInterrogation.pdf] (September 1, 2004). For an
analysis of the approved interrogation procedures, see CRS Report RL32567, Lawfulness
of Interrogation Techniques under the Geneva Conventions, by Jennifer K. Elsea.
86 Section 1003 of P.L. 109-148. See CRS Report RL33655, Interrogation of Detainees:
Overview of the McCain Amendment, by Michael John Garcia.
87 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.
88 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. . .”).
89 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.
90 See Eric Schmitt, Exception Sought in Detainee Abuse Ban, N.Y. TIMES, October 25,
2005, at 16.
91 151 CONG. REC. S12667 (daily ed. November 10, 2005)(introduced by Sen. Graham,
(continued...)
CRS-18
Services and Judiciary Committees the procedural rules for determining detainees’
status.92 The amendment neither authorizes nor requires a formal status
determination, but it does require that certain congressional committees be notified
30 days prior to the implementation of any changes to the rules. As initially adopted
by the Senate, the amendment would have required these procedural rules to preclude
evidence determined by the board or tribunal to have been obtained by undue
coercion, however, the conferees modified the language so that the tribunal or board
must assess, “to the extent practicable ... whether any statement derived from or
relating to such detainee was obtained as a result of coercion” and “the probative
value, if any, of any such statement.”
The Graham-Levin Amendment also 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).93 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,94 the final
approval of CSRT decisions was the responsibility of the convening authority, 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
91 (...continued)
passed by roll call vote, 49 - 42), as amended by S.Amdt. 2524, 151 CONG. REC. S12771
(daily ed. November 14, 2005).
92 The amendment refers to both the Combatant Status Review Tribunals (“CSRTs”), the
initial administrative procedure to confirm the detainees’ status as enemy combatants, and
the Administrative Review Boards, which were established to provide annual review that
the detainees’ continued detention is warranted.
93 Section 1405(e). Sen. Bingaman offered a second-degree amendment to eliminate the
provision, but it was not adopted.
94 CSRT Order, supra note 24.
CRS-19
CSRTs was addressed.95 The procedures established by Secretary England refer to
the position of Director, CSRT, who appears to be the convening authority for the
tribunals.96 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, and
made review over convictions with lesser penalties discretionary. The scope of
review was limited to considering whether the decision applied the correct standards
consistent with Military Commission Order No. 1 (implementing the President’s
Military Order) and whether those standards were consistent with the Constitution
and laws of the United States, to the extent applicable.
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.
95 See id. The Department of Defense appointed the Secretary of the Navy, Gordon England,
to be the designated civilian official to operate and oversee the annual administrative review
boards set up to determine the continued detention of persons affirmed by CSRTs to be
enemy combatants at Guantanamo Bay Naval Base, Cuba. See Press Release, Department
of Defense, Navy Secretary to Oversee Enemy Combatant Admin Review (June 23, 2004),
available at [http://www.defenselink.mil/releases/release.aspx?releaseid=7489].
96 See CSRT Implementing Directive, supra note 24.
CRS-20
Provisions Affecting Court Jurisdiction
The Military Commissions Act of 2006 amended the DTA provisions regarding
appellate review and habeas corpus jurisdiction.97 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,98 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.99
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.100
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
97 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.
98 MCA § 5.
99 10 U.S.C. § 950g(b).
100 MCA § 7.
CRS-21
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.101 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.102
Section 5 of the MCA, however, specifically precludes the application of the
Geneva Conventions to habeas or other civil proceedings.103 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.104 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.105
101 28 U.S.C. § 2241.
102 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).
103 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.”
104 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.”
105 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).
CRS-22
In addition, the act provides that the President shall have the authority to
interpret the meaning of the Geneva Conventions.106 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,107 this
power does not generally extend to “interpreting” treaty obligations, a role more
traditionally associated with courts.108 In general, Congress is prohibited from
exercising powers allocated to another branch of government.109 In United States v.
Klein,110 the Congress passed a law designed to frustrate a finding of the Supreme
Court as to the effect of a presidential pardon.111 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.112 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.113 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
106 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.”
107 See, e.g., id. (President is given power to promulgate higher standards and administrative
regulations for violations of treaty obligations).
108 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.”).
109 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).
110 80 U.S. (13 Wall.) 128 (1871).
111 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.
112 See generally Miller v. French, 530 U.S. 327, 350-51 (2000)(Souter, J., concurring).
113 MCA § 6(a)(3)(B).
CRS-23
regard is already firmly established.114 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.115
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 Bay116 and the petition of an alien detained as an enemy combatant in
a naval brig in South Carolina.117 Legislation introduced at the end of the 109th
Congress to amend the MCA did not reach the floor of either house.118
114 “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).
115 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.
116 See Karen DeYoung, Court Told It Lacks Power in Detainee Cases, WASH. POST,
October 20, 2006, at A18 (reporting notice submitted by Justice Department to courts of
intention to move for dismissal of pending enemy combatant cases).
117 Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007).
118 See S. 4081 and H.R. 6381, 109th Cong.
CRS-24
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.119 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,120 that the
President has the authority to detain U.S. citizens as enemy combatants pursuant to
the Authorization to Use Military Force (AUMF),121 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,”122 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.
119 See, e.g., Scott Shane and Adam Liptak, Detainee Bill Shifts Power to President, N.Y.
TIMES, September 30, 2006, at A1.
120 542 U.S. 507 (2004).
121 P.L. 107-40, 115 Stat. 224 (2001).
122 542 U.S. at 516.
CRS-25
Further, it does not appear that Congress meant to apply a different definition of
“enemy combatant” to persons depending on their citizenship. Congress could
specify that U.S. citizens captured in the context of the “Global War on Terror” be
subject to trial in U.S. court for treason or a violation of any other statute, or
prescribe procedures for determining whether U.S. citizens are subject to detention
as enemy combatants, but it has not done so.
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,123 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,124 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.”125 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 petition126 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 detainees127 did not dissuade the court from reverting to the position it
had taken in its Al Odah opinion,128 namely, that Eisentrager was controlling and
123 476 F.3d 981 (D.C. Cir. 2007)(consolidated appeal of Kalid v. Bush and In re
Guantanamo Detainee Cases, discussed supra pages 9-10).
124 464 F. Supp. 2d 9 (D.D.C. 2006).
125 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.
126 Id. at 19.
127 Rasul v. Bush, 542 U.S. 466, 475 (2004).
128 Al Odah v. United States, 321 F.3d 1134 (D.C. Cir 2003), rev’d sub nom Rasul v. Bush,
(continued...)
CRS-26
mandated dismissal for lack of jurisdiction. Judge Rogers, in dissent, would have
given the Rasul opinion greater deference, citing the principle that “carefully
considered language of the Supreme Court, even if technically dictum, generally must
be treated as authoritative.”129 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.130
The Supreme Court initially denied the petitioners’ request for review,131 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...,”132 possibly indicating that at least these two Justices do not believe the
MCA curtails such jurisdiction.
In June, 2007, however, the Court reversed its earlier denial and granted
certiorari to hear the consolidated petitions. The questions presented in Boumediene
are:
128 (...continued)
542 U.S. 466 (2004).
129 Boumediene, 476 F.3d at 1002 (Rogers, J., dissenting))(citing Sierra Club v. EPA, 322
F.3d 718, 724 (D.C. Cir. 2003)).
130 See id. at 1004 (“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.”).
131 Boumediene v. Bush, 549 U.S. __ (2007).
132 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).
CRS-27
1. Whether the Military Commissions Act of 2006, Pub. L. No. 109-366, 120
Stat. 2600, validly stripped federal court jurisdiction over habeas corpus petitions
filed by foreign citizens imprisoned indefinitely at the United States Naval
Station at Guantanamo Bay.
2. Whether Petitioners’ habeas corpus petitions, which establish that the United
States government has imprisoned Petitioners for over five years, demonstrate
unlawful confinement requiring the grant of habeas relief or, at least, a hearing
on the merits.
The questions presented in Al Odah are:
1. Did the D.C. Circuit err in relying again on Johnson v. Eisentrager, 339 U.S.
763 (1950), to dismiss these petitions and to hold that petitioners have no
common law right to habeas protected by the Suspension Clause and no
constitutional rights whatsoever, despite this Court’s ruling in Rasul v. Bush, 542
U.S. 466 (2004), that these petitioners are in a fundamentally different position
from those in Eisentrager, that their access to the writ is consistent with the
historical reach of the writ at common law, and that they are confined within the
territorial jurisdiction of the United States?
2. Given that the Court in Rasul concluded that the writ at common law would
have extended to persons detained at Guantanamo, did the D.C. Circuit err in
holding that petitioners’ right to the writ was not protected by the Suspension
Clause because they supposedly would not have been entitled to the writ at
common law?
3. Are petitioners, who have been detained without charge or trial for more than
five years in the exclusive custody of the United States at Guantanamo, a
territory under the plenary and exclusive jurisdiction of the United States,
entitled to the protection of the Fifth Amendment right not to be deprived of
liberty without due process of law and of the Geneva Conventions?
4. Should section 7(b) of the Military Commissions Act of 2006, which does not
explicitly mention habeas corpus, be construed to eliminate the courts’
jurisdiction over petitioners’ pending habeas cases, thereby creating serious
constitutional issues?
The Court will schedule supplemental briefings if necessary to obtain the
parties’ views with respect to the outcome of the Bismullah case currently pending
in the Circuit Court of Appeals for the District of Columbia Circuit.133
Bismullah v. Gates/Parhat v. Gates. Haji Bismullah, who was captured
in Afghanistan in 2003, and Husaifa Parhat and six other detainees, all ethnic
Chinese Uighers captured in Pakistan in December 2001, filed these challenges under
the DTA contesting CSRT determinations that they are properly detained as “enemy
combatants.” At issue at this stage in the proceedings was a series of motions filed
by both parties seeking to establish procedures governing access to classified
information, attorneys’ access to clients, and other matters. The petitioners sought
133 Boumediene v. Bush, 551 U.S. __ (2007) (referring to Bismullah, et al., v. Gates, No.
06-1197, and Parhat, et al., v. Gates, No. 06-1397).
CRS-28
to have the court adopt rules similar to what the district court had ordered when the
cases were before it on petitions of habeas corpus. The government sought to
establish rules restricting scope of discovery and attorney-client communication to
what it viewed as the proper scope of the court’s review, that is, the CSRT
proceedings.
The D.C. Circuit recently issued an order rejecting the government’s motion to
limit the scope of the court’s review to the official record of the CSRT hearings.134
Rather, the court decided, in order to determine whether a preponderance of evidence
supported the CSRT determinations, it must have access to all the information a
CSRT “is authorized to obtain and consider, pursuant to the procedures specified by
the Secretary of Defense.” The court denied the petitioners’ motion for discovery, at
least for the time being, stating there was no need for additional evidence to
challenge a CSRT’s ruling that specific evidence or a witness was not reasonably
available. And, because the DTA does not authorize the court to hold a status
determination invalid as “arbitrary and capricious,” there was no need for it to
evaluate the conduct of other detainees’ CSRTs. The court also denied as
unnecessary the petitioners’ motion to appoint a special master.
The court also promised to enter a protective order to implement guidelines for
handling classified and sensitive information and for government monitoring of
attorney client written communications (“legal mail”). Again stressing its mandate
under the DTA to determine whether a preponderance of the evidence supports a
CSRT’s status determination, the court found that counsel for the detainees, to aid
in their capacity to assist the court, should be presumed to have a “need to know” all
government information concerning their clients except for highly sensitive
information, in which case the government could present the evidence to the court
ex parte. The court rejected the government’s proposal that would have allowed the
government, rather than the court, to determine what unclassified information would
be required to be kept under seal. With respect to legal mail, the court agreed to the
government’s proposal to have mail from attorneys to detainees reviewed by a
“privilege team,” composed of Department of Defense personnel not involved in the
litigation, to redact information not pertinent to matters within the court’s limited
scope of review.
Al-Marri v. Wright. After Al-Marri appealed the decision of the district court
upholding his detention as an enemy combatant, discussed above, the government
moved to dismiss the appeal on the basis that the MCA strips the court of
jurisdiction. The petitioner asserted that Congress did not intend to deprive him of
his right to habeas or that, alternatively, the MCA is unconstitutional. A three-judge
panel of the Fourth Circuit held that the MCA does not apply to the petitioner. The
majority avoided the constitutional question by finding that Al-Marri does not meet
the statutory definition as an alien who “has been determined by the United States to
have been properly detained as an enemy combatant or is awaiting such
determination.” While the President’s order designating Al-Marri an “enemy
combatant” satisfied the requirement for an initial status determination, the majority
found it did not satisfy the statutory requirement for a review process to confirm that
134 Bismullah v. Gates, No. 06-1197 (July 20, 2007).
CRS-29
the initial determination was proper. The MCA, according to the majority’s
interpretation, requires a two-step process for determining whether persons are
properly detained as enemy combatants.
The court next found that Al-Marri could not be said to be awaiting such a
determination within the meaning of the MCA, inasmuch as the government was
arguing on the merits that the presidential determination had provided all of the
process that was due, and the government had offered the possibility of bringing Al-
Marri before a CSRT only as an alternative possibility in the event the petition were
dismissed. Further, the majority looked to the legislative history of the MCA, from
which it divined that Congress did not intend to replace habeas review with the
truncated review available under the amended DTA in the case of aliens within the
United States, who it understood to have a constitutional as opposed to merely
statutory entitlement to seek habeas review.135 District Judge Hudson, sitting by
designation, agreed that the MCA did not divest the court of its constitutional
jurisdiction to review habeas corpus decisions involving individual detainees within
the United States, although he did not otherwise concur with the majority’s reasoning
on jurisdiction.
Turning to the merits, the majority found that Al-Marri does not fall within the
legal category of “enemy combatant” within the meaning of Hamdi, and that if the
government wishes to continue holding him, it must charge him with a crime,
commence deportation proceedings, hold him as a material witness in connection
with grand jury proceedings, or detain him for a limited time pursuant to the Patriot
Act.136 In so holding, the majority rejected the government’s contention that the
AUMF authorizes the President to order the military to seize and detain persons
within the United States under the facts asserted by the government, or that,
alternatively, the President has inherent constitutional authority to order the
detention. The government cited the Hamdi decision and the Fourth Circuit’s
decision in Padilla v. Hanft137 to support its contention that Al-Marri is an enemy
combatant within the meaning of the AUMF and the law of war. The court, however,
interpreted Hamdi as confirming only that “the AUMF is explicit congressional
135 Al-Marri v. Wright , 487 F.3d 160 (4th Cir. 2007). The majority opined that
the Government’s argument that the phrase “awaiting such determination” covers
persons confined within the United States yields a strange result. It would mean
that Congress assured that Guantanamo Bay detainees were provided with an
administrative factfinding process (the CSRT) followed by judicial review in the
D.C. Circuit when eliminating habeas jurisdiction over their cases-but that
Congress provided neither any substitute administrative procedure nor any form
of judicial review when eliminating the habeas rights of those captured and
detained within the United States. The Government offers nothing to indicate
that Congress embarked on this strange course, and the legislative history of the
MCA renders that theory untenable.
Id. at 172.
136 Id. at 196.
137 423 F.3d 386 (4th Cir. 2005). The government is no longer holding Jose Padilla as an
enemy combatant, having turned him over to civil authorities for trial on charges associated
with terrorism.
CRS-30
authorization for the detention of individuals in the narrow category ... [of]
individuals who were ‘part of or supporting forces hostile to the United States or
coalition partners in Afghanistan and who engaged in an armed conflict against the
United States there.’”138 Likewise, Padilla, although captured in the United States,
could be detained pursuant to the AUMF only because he had been, prior to returning
to the United States, “‘armed and present in a combat zone’ in Afghanistan as part
of Taliban forces during the conflict there with the United States.”139 The court
explained that the two cases cited by the government, Hamdi and Padilla, involved
situations similar to the World War II case Ex parte Quirin,140 in which the Supreme
Court agreed that eight German saboteurs could be tried by military commission
because they were enemy belligerents within the meaning of the law of war.141 In
contrast, Al-Marri’s situation was to be likened to Ex parte Milligan,142 the Civil War
case in which the Supreme Court held that a citizen of Indiana accused of conspiring
to commit hostile acts against the Union was nevertheless a civilian who was not
amenable to military jurisdiction.143 The court concluded that enemy combatant
status rests, in accordance with the law of war, on affiliation with the military arm of
an enemy government in an international armed conflict.
Judge Hudson dissented, arguing that the broad language of the AUMF, which
authorized the President “to use all necessary and appropriate force against those
nations, organizations, or persons he determines” were involved in the terrorist
attacks of September 11, 2001, “would certainly seem to embrace surreptitious al
Qaeda agents operating within the continental United States.”144 He would have
found no meaningful distinction between the present case and Padilla.
Legislation. The National Defense Authorization Act for Fiscal Year 2008,
P.L. 110-181 (H.R. 4986), section 1067 requires the President to submit a report that
contains information about detainees at Guantanamo Bay, Cuba, under the control
of the Joint Task Force Guantanamo, who are or have ever been classified as “enemy
combatants.” The report is to identify the number of detainees who are to be tried by
military commission; the number of detainees to be released or transferred; the
number of detainees to be retained but not charged; and a “description of the actions
required to be undertaken, by the Secretary of Defense, possibly the heads of other
Federal agencies, and Congress, to ensure that detainees who are subject to an order
calling for their release or transfer from the Guantanamo Bay facility have, in fact,
been released.” The Senate Judiciary Committee Subcommittee on Terrorism,
Technology and Homeland Security held a hearing December 11, 2007, entitled “The
138 Al-Marri at 180 (citing Hamdi at 516-17)(emphasis in original).
139 Id. (citing Padilla, 423 F.3d at 390-91).
140 317 U.S. 1 (1942).
141 Al-Marri at 179 (citing Quirin, 317 U.S. at 37-38; Hamdi, 542 U.S. at 519; Padilla, 423
F.3d at 391).
142 71 U.S. (4 Wall.) 2 (1866).
143 Al-Marri at 189.
144 Id. at 196 (Hudson, J., dissenting).
CRS-31
Legal Rights of Guantanamo Detainees: What Are They, Should They Be Changed,
and Is an End in Sight?”
The Senate reported a provision in two earlier versions of the FY2008 Defense
authorization bill, S. 1547 and S. 1548, that would have required the Secretary of
Defense to convene a CSRT, conducted in accordance with requirements similar to
those that apply in military commissions, to determine the status of each detainee
who has been held for more than two years as an “unlawful enemy combatant,”
unless such detainee is undergoing trial or has been convicted by a military
commission. The provision adopted the definition of “unlawful enemy combatant”
from the MCA, with the addition of an alien who is not a lawful combatant and who
has been a “knowing and active participant in an organization that engaged in
hostilities against the United States.” The provision would have prohibited the use
of information acquired through coercion not amounting to cruel, inhuman or
degrading treatment (as defined in the DTA) unless the totality of the circumstances
renders the statement reliable and possessing sufficient probative value; the interests
of justice would best be served by admission of the statement into evidence; and the
Tribunal determines that the alleged coercion was incident to the lawful conduct of
military operations at the point of apprehension; or the statement was voluntary. The
provision was stripped out of the Senate version of the National Defense
Authorization Act for Fiscal Year 2008 (H.R. 1585) prior to passage by the Senate.
S. 1249 and H.R. 2212 would require the President to close the detention
facilities at Guantanamo Bay and either transfer the detainees to the United States for
trial (by military proceeding or Article III court) or for detention as enemy
combatants as may be authorized by Congress; to transfer detainees to an appropriate
international tribunal operating under U.N. auspices; to transfer detainees to their
country of citizenship or a different country for further legal process, where adequate
assurances are given that the individual will not be subject to torture or cruel,
inhuman, or degrading treatment; or to release them from any further detention.
Several bills have been introduced in both Houses of Congress to amend the
habeas provisions in the DTA. H.R. 1189, the Habeas Corpus Preservation Act,
would provide that the MCA is to be construed to avoid any effect on the right of any
U.S. resident to habeas corpus.
The Military Commissions Habeas Corpus Restoration Act of 2007, H.R. 267,
would repeal subsection (e) of 28 U.S.C. § 2241. The bill would add a new Section
1632 to Title 28 providing that no court has jurisdiction to hear cases against the
United States or its agents by aliens detained as enemy combatants except for the
reviews provided in the DTA and habeas corpus petitions. H.R. 2826 would amend
28 U.S.C. § 2241(e) to allow habeas corpus actions and requests for injunctive relief
against transfer, except in cases of detainees held in an active war zone where the
Armed Forces are implementing AR 190-8 or any successor regulation. However,
habeas challenges related to the decisions of CSRT would be limited to the United
States Court of Appeals for the District of Columbia Circuit under the same
restrictions in scope that currently apply to appeals of CSRT decisions under the
DTA. The bill would also amend 10 U.S.C. § 950j(b) to restore jurisdiction for
habeas corpus, but not for other actions, related to the prosecution, trial or judgment
of a military commission.
CRS-32
H.R. 2710 would repeal 28 U.S.C. § 2241(e) to restore jurisdiction over all
cases related to the detention of persons as “enemy combatants,” but would prohibit
challenges other than habeas corpus actions in cases relating to the prosecution, trial,
or judgment of a military commission. H.R. 2543, the Military Commissions
Revision Act of 2007, would revise the definition of unlawful enemy combatant to
cover only a “person who has engaged in, attempted, or conspired to engage in acts
of armed hostilities or terrorism against the United States or its co-belligerents, and
who is not a lawful enemy combatant.” Under the bill, CSRT decisions would no
longer be dispositive for purposes of determining the jurisdiction of military
commissions. Statements obtained by a degree of coercion less than torture would
be admissible in a military commission only if the military judge finds that “the
totality of the circumstances indicates that the statement possesses probative value
to a reasonable person; the interests of justice would best be served by admitting the
statement into evidence; and the interrogation methods used to obtain the statement
do not amount to cruel, inhuman or degrading treatment.” Habeas corpus jurisdiction
would be restored for alien enemy combatants after two years since the date of
detention if no criminal charges are pending against the detainee.
S. 185/H.R. 1416, the Habeas Corpus Restoration Act, would repeal subsection
(e) of 28 U.S.C. § 2241, but would amend 10 U.S.C. § 950j so that court jurisdiction
would continue to be unavailable for detainees seeking to challenge military
commissions, except through the limited procedures under the DTA, as amended, and
“as otherwise provided in [chapter 47a of title 10, U.S. Code] or in section 2241 of
title 28 or any other habeas corpus provision.” S. 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.)
A version of the Habeas Corpus Restoration Act was offered as an amendment
to the National Defense Authorization Act, H.R. 1585 (Senate amendment no. 2022),
CRS-33
but was not adopted. (After President Bush vetoed H.R. 1585, Congress passed a
virtually identical bill, H.R. 4846, which became P.L. 110-181).
Constitutional Considerations
The Supreme Court has granted certiorari to address whether the DTA is a valid
suspension of the Writ or whether it violates the Constitution’s Suspension Clause
(article I, § 9, cl. 2) or possibly 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 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.145
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.146 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.147 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.148 Minor
145 Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007); Hamdan v. Rumsfeld, 464
F.Supp.2d 9 (D.D.C. 2006).
146 For a general background and description of related writs, see 39 AM. JUR. 2d. Habeas
Corpus § 1 (1999).
147 See generally S. DOC. NO. 108-17 at 848 et seq.
148 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.”).
CRS-34
irregularities in trial procedures that do not amount to violations of fundamental
constitutional rights are generally to be addressed on direct appeal.149
Given the emphasis the Rasul Court placed on the distinction between the
statutory and constitutional entitlement to habeas corpus, it would seem reasonable
to suppose that Congress might easily revoke by statute what it had earlier granted
without offending either the Court or the Constitution. However, the special status
accorded the Writ by the Suspension Clause of the Constitution complicates matters.
Article I, § 9, cl. 2, provides: “The Privilege of the Writ of Habeas Corpus shall
not be suspended, unless when in Cases of Rebellion or Invasion the public Safety
may require it.” If the 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,150 it has been explained that the Constitution obligates
Congress to provide “efficient means by which [the Writ] should receive life and
activity.”151 While the Court has stated that “at the absolute minimum, the
Suspension Clause protects the writ ‘as it existed in 1789,’”152 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.”153 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.154 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.155
Whether a limitation on habeas jurisdiction constitutes a suspension of the Writ has
149 39 AM. JUR. 2d. Habeas Corpus § 27 (1999).
150 Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807).
151 Id. at 94.
152 Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289, 301 (U.S. 2001).
153 Felker v. Tupin, 518 U.S. 663 (1996)(citing Swain v. Pressley, 430 U.S. 372 (1977)).
154 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).
155 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”).
CRS-35
been held to depend on whether Congress has provided an effective and adequate
alternative means of pursuing relief.156
Congress’s authority to control the courts’ jurisdiction over habeas cases was
tested in the aftermath of the Civil War. As part of its Reconstruction efforts,
Congress broadened the scope of the Writ to provide for review of convictions of
state courts and to give the Supreme Court appellate jurisdiction in habeas corpus
cases. Prior to that time, the Supreme Court could review habeas decisions only by
issuing an original writ of habeas corpus combined with certiorari. However, when
the Court’s new appellate review appeared to threaten the legitimacy of much of the
Reconstruction legislation, including a statute that allowed military trials of civilians
in formerly Confederate states, Congress hastily revoked the Supreme Court’s
appellate jurisdiction over habeas cases. The Supreme Court upheld Congress’s
authority to revoke its appellate jurisdiction, even though it had already heard
arguments in the case of McCardle, a civilian held for trial by a military commission
in Mississippi. Upon dismissing McCardle’s appeal, however, the Court remarked:
Counsel seem to have supposed, if effect be given to the repealing act in
question, that the whole appellate power of the court, in cases of habeas corpus,
is denied. But this is an error. The act of 1868 does not except from that
jurisdiction any cases but appeals from Circuit Courts under the act of 1867. It
does not affect the jurisdiction which was previously exercised.157
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.158 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,159 yet it remains unclear whether Congress is free to revoke
156 See United States v. Hayman, 342 U.S. 205 (1952); Hill v. United States, 368 U.S. 424
(1962); Swain v. Pressley, 430 U.S. 372 (1977); Felker v. Turpin, 518 U.S. 651 (1996);
Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289 (2001).
157 Ex parte McCardle, 74 U.S. (7 Wall.) 506, 515 (1868).
158 Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1869).
159 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,
(continued...)
CRS-36
such jurisdiction without effecting a suspension of the Writ. In Felker v. Turpin,160
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 by 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 to petition
for habeas corpus, whether held abroad or within the United States, may bring the
Court to clarify a question it did not resolve in Rasul, namely, whether that decision
extended beyond Guantanamo Bay to other U.S. prisons abroad where the United
States does not exercise exclusive jurisdiction and control.161
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 and CSRT
proceedings 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.
159 (...continued)
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).
160 518 U.S. 651 (1996).
161 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. Persons detained in Afghanistan and Iraq may be
affected by the Supreme Court’s eventual ruling. See Maqaleh v. Gates, No. 06-1669
(D.D.C. July 18, 2007) (order denying motion for dismissal based on lack of jurisdiction
under the MCA of a petition filed by a detainee at Bagram Air Base in Afghanistan).
CRS-37
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 corpus162 based on claims that they are held
“in custody in violation of the Constitution or laws or treaties of the United States.”163
In general, writs of habeas corpus are available as a means of challenging the fact or
length of a detention or incarceration.164 The DTA appears intended to prohibit
detainees from utilizing this particular statutory procedure to bring cases into court.165
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
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 scope of
evidence it may review in reaching such a determination remains unclear. In the
context of CSRT challenges, the government has argued that administrative law
(applicable to reviews of agency determinations) supplies the appropriate model, so
that only the record of the CSRT proceedings is subject to review, and that extrinsic
evidence not already part of the record should not be subject to discovery.166 The
D.C. Circuit, however, rejected that view, holding that its review must encompass all
of the information a CSRT is authorized to obtain and consider.167 The D.C.
Circuit’s jurisdiction also includes constitutional review of whether the standards and
procedures utilized in the military proceedings below were consistent with the
Constitution and laws of the United States.
The remedy available in court may also have some bearing on whether the DTA
review procedures are an adequate and effective alternative to habeas review. Under
Title 28, U.S. code, the court must “award the writ or issue an order directing the
respondent to show cause why the writ should not be granted, unless it appears from
the application that the detainee is not entitled to it.”168 The court can order either
party to expand the record by submitting additional information bearing on the
162 28 U.S.C. §§ 2241(a), (c)(3).
163 Rasul v. Bush, 542 U.S. 466 (2004).
164 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).
165 As discussed above, there may be limits to the extent to which the writ of habeas corpus
may be suspended.
166 See Gov’t Br. Address. Pend. Prelim. Mots. at 49-51, Bismullah v. Gates, No. 06-1197
(D.C. Cir.).
167 Bismullah v. Gates, No. 06-1197 (D.C. Cir. July 20, 2007)(order on procedural motions).
168 28 U.S.C. § 2243.
CRS-38
petition.169 The court may order hearings to assist it in determining the facts, and is
authorized to “dispose of the matter as law and justice require,”170 or in criminal
cases, to vacate a sentence, grant a new trial, or order that a prisoner be released.171
By contrast, the DTA review procedures do not address the remedies available to
detainees who prevail in a challenge. In the context of CSRT determinations, the
government has suggested that remand for new CSRT proceedings is the appropriate
remedy for a determination that an error of law was made or to consider new
evidence.172
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 confinement173 when they can be
transferred,174 or whether they can have contact with relatives.175 Although some of
these were brought as habeas corpus cases,176 Guantanamo detainees have also
sought relief from the courts using the All Writs Act,177 principally to prevent their
transfer to other countries without notice,178 but for other reasons too.179 Use of the
All Writs Act by a court is an extraordinary remedy, generally not invoked if there
is an alternative remedy available.180
169 Rules Governing § 2255 Cases, Rule 7, 28 U.S.C.A. foll. § 2255 (applicable to prisoners
subject to sentence of a federal court).
170 28 U.S.C. § 2243.
171 28 U.S.C. § 2255.
172 See Gov’t Br. in Opp. to Pet. for Reh’g, Boumediene v. Bush, No. 16-1195 (U.S.).
173 Paul Shukovsky, Terrorism Suspect’s Suit Tells of U.S. Abuse: Documents in
Guantanamo Case Describe Extreme Isolation, SEATTLE POST-INTELLIGENCER, August 6,
2004, at A1.
174 Al-Anazi v. Bush, 370 F. Supp. 2d 188 (D.D.C. 2005).
175 Josh White, Lawyers Seek Improved Conditions for Suicidal Detainee, WASH. POST,
November 5, 2005, at A8.
176 See, e.g., In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 480-81 (D.D.C.
2005)(rejecting claims on other grounds).
177 All Writs Act, 28 U.S.C. § 1651.
178 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).
179 See El-Banna v. Bush, 2005 U.S. Dist. LEXIS 16880 (2005) (seeking preservation of
records relating to treatment of detainees).
180 Al-Anazi v. Bush, 370 F. Supp. 2d 188, 196 (D.D.C. 2005).
CRS-39
Prisoners in federal prison, acting under a district court’s general jurisdiction to
consider claims arising under the Constitution,181 have also sought writs of
mandamus182 to obtain changes in prison conditions.183 These writs, which are
directed against government officials, have been used to require those officials to act
in compliance with constitutional requirements. Although these challenges are often
denied on the merits or on procedural grounds, cases have been brought based on the
First Amendment,184 Sixth Amendment,185 Eighth Amendment186 and various other
grounds.187 To the extent that these alternates writs are not cut off by the DTA,188 they
might offer an alternative route to challenge conditions of detention.189
Finally, it is possible that the detainees in Guantanamo could have attempted to
bring a Bivens action for damages against relevant government officials.190 In Bivens
181 28 U.S.C. § 1331. See Caldwell v. Miller, 790 F.2d 589 (7th Cir. 1986).
182 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).
183 Relief in mandamus is generally available where: (1) the plaintiff can show a clear legal
right to the performance of the requested action; (2) the duty of the official in question is
clearly defined and nondiscretionary; (3) there is no other adequate remedy available to the
plaintiff; (4) there are other separate jurisdictional grounds for the action. Id. at 1(a). A writ
of mandamus may issue only where “the duty to be performed is ministerial and the
obligation to act peremptory, and clearly defined. The law must not only authorize the
demanded action, but require it; the duty must be clear and undisputable.” Ali v. Ashcroft,
350 F. Supp. 2d 28, 65 (D.D.C. 2004), quoting Shoshone-Bannock Tribes v. Reno, 56 F.3d
1476, 1479 (D.C. Cir. 1995).
184 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).
185 Stover v. Carlson, 413 F. Supp. 718 (D. Conn. 1976) (ending federal prison practice of
opening privileged communications outside of prisoner’s presence).
186 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).
187 See generally Donaldson, supra note 182.
188 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”).
189 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).
190 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
(continued...)
CRS-40
v. Six Unknown Federal Narcotics Agents,191 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.192 Again, this remedy is most likely to be
available where Congress has not provided an adequate remedy for constitutional
violations.193 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.194 The language of the DTA itself appears to cut off all
court jurisdiction for detainees except for limited review of the fact of detention.195
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
190 (...continued)
12999, *6 (N.D. Ill. September 1, 2000).
191 403 U.S. 388 (1971).
192 Carlson v. Green, 446 U.S. 14 (1980)(Court allowed a Bivens action against federal
prison officials for failing to provide adequate medical treatment).
193 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.
194 See 151 Cong. Rec. S12752-54 (daily ed. November 14, 2005)(statement of Senator
Lindsay Graham).
195 DTA, § 1005(e) (codified at 28 U.S.C. 2241(e)).
CRS-41
establish.196 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,197 nothing else about the Court’s structure and operation is set
forth, leaving the size and composition of the Court, as well as the specifics, if any,
of the lower federal courts, to Congress.198 Utilizing its power to establish inferior
courts, Congress has also created the United States district courts,199 the courts of
appeals for the thirteen circuits,200 and other federal courts.201
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.”202 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.”203
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
196 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.”
197 Although the position of Chief Justice is not specifically mandated, it is referenced in
Article I, § 3, Cl. 6, in connection with the procedure for the Senate impeachment trial of
a President:
The Senate shall have the sole Power to try all Impeachments. When sitting for
that Purpose, they shall be on oath or affirmation. When the President of the
United States is tried, the Chief Justice shall preside: and no Person shall be
convicted without Concurrence of two-thirds of the Members present.
198 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.
199 28 U.S.C. §§ 81-131, 132.
200 28 U.S.C. §§ 41, 43 (District of Columbia Circuit, First Circuit through Eleventh Circuit,
Federal Circuit).
201 See, e.g., 28 U.S.C. §§ 151 (U.S. bankruptcy courts); 251 (U.S. Court of International
Trade).
202 Williams v. Rhodes, 393 U.S. 23, 29 (1968).
203 United States v. Bitty, 208 U.S. 393, 399-400 (1908).
CRS-42
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.204 Nor, without amendment of the
Constitution, could Congress provide that the courts may take property while denying
a right to compensation under the takings clause.205 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,206 the Supreme Court has
reemphasized separation of powers as a vital element in American federal
government.207
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,208 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
204 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).
205 The Fifth Amendment provides that no “private property [ ] be taken for public use
without just compensation.”
206 424 U.S. 1, 109-43 (1976).
207 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).
208 2 U.S. (2 Dall.) 409 (1792). This case was not actually decided by the Supreme Court,
but by several Justices on circuit.
CRS-43
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.209 More recently, the doctrine of separation of
powers has been applied to prevent Congress from vesting jurisdiction over
common-law bankruptcy claims in non-Article III courts.210
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.211 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.
209 Those principles remain vital. See, e.g., Chicago & S. Air Lines v. Waterman S. S. Corp.,
333 U.S. 103, 113-14 (1948)(“Judgments within the powers vested in courts by the Judiciary
Article of the Constitution may not lawfully be revised, overturned or refused faith and
credit by another Department of Government.”); Connor v. Johnson, 402 U.S. 690 (1971).
210 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).
211 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.
CRS-44
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 decisions212
under the Fair Labor Standards Act of 1938213 exposed employers to $5 billion
dollars in damages, and the United States itself was threatened with liability for over
$1.5 billion. Subsequently, Congress enacted the Portal to Portal Act of 1947,214
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....”215 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.216
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.217 Other commentators point to sovereign immunity
and the ability of the government to limit the remedies available to plaintiffs.218
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.219 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.
212 See, e.g., Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944).
213 29 U.S.C. §§ 201-219.
214 29 U.S.C. §§ 251-262.
215 Battaglia v. General Motors Corp., 169 F.2d 254, 257 (2d Cir. 1948).
216 See, e.g., Webster v. Doe, 486 U.S. 592 (1988).
217 486 U.S. at 612-13 (Scalia, J., dissenting).
218 Bartlett v. Bowen, 816 F.2d 695, 719-720 (1987)(Bork, J., dissenting).
219 First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S.
304 (1987).
CRS-45
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, and the power of the courts to review the actions of the political
branches. 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. The Supreme Court’s decision to
review the cases of Guantanamo detainees whose habeas petitions were dismissed
pursuant to the MCA will likely lead, absent a change to the detention policy that
would render the dispute moot, to a judicial clarification of the meaning of the
Suspension Clause and the extent of Congress’s power to regulate the authority of the
judicial branch. The Court’s determination of those issues may hinge in part on the
interpretation by the Court of Appeals for the District of Columbia Circuit of the
proper scope of its review of detainee cases under the MCA.