Order Code RL33180
Enemy Combatant Detainees:
Habeas Corpus Challenges in Federal Court
Updated July 29, 2008
Jennifer K. Elsea, Michael John Garcia, and Kenneth R. Thomas
Legislative Attorneys
American Law Division

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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 passed the Detainee Treatment Act of 2005 (DTA)
to divest the courts of jurisdiction to hear some detainees’ challenges by eliminating
the federal courts’ statutory jurisdiction over habeas claims by aliens detained at
Guantanamo Bay (as well as other causes of action based on their treatment or living
conditions). The DTA provides instead for limited appeals of CSRT determinations
or final decisions of military commissions. After the Supreme Court rejected the
view that the DTA left it without jurisdiction to review a habeas challenge to the
validity of military commissions in the case of Hamdan v. Rumsfeld, 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 access to federal courts by “alien enemy combatants,” wherever held,
by eliminating pending and future causes of action other than the limited review of
military proceedings permitted under the DTA.
In June 2008, the Supreme Court held in the case of Boumediene v. Bush that
aliens designated as enemy combatants and detained at Guantanamo Bay have the
constitutional privilege of habeas corpus. The Court also found that MCA § 7,
which limited judicial review of executive determinations of the petitioners’ enemy
combatant status, did not provide an adequate habeas substitute and therefore acted
as an unconstitutional suspension of the writ of habeas. The immediate impact of the
Boumediene decision is that detainees at Guantanamo may petition a federal district
court for habeas review of the legality and possibly the circumstances of their
detention, perhaps including challenges to the jurisdiction of military commissions.
Pertinent legislation includes H.R. 267, S. 185, S. 576, S. 1547, S. 1548, H.R. 1415,
H.R. 1416, H.R. 1585, H.R. 4986, H.R. 1189, H.R. 2543, H.R. 2710, H.R. 2826, S.
1249, H.R. 5658, S. 3001, S. 3002, H.R. 2212 and H.R. 6274.

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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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Hamdan v. Rumsfeld . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Presidential Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
The Geneva Conventions and the Law of War . . . . . . . . . . . . . . . . . . 14
Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Al-Marri . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Detainee Treatment Act of 2005 (DTA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
The Military Commissions Act of 2006 (MCA) . . . . . . . . . . . . . . . . . . . . . . . . . 23
Provisions Affecting Court Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Provisions Regarding the Geneva Conventions . . . . . . . . . . . . . . . . . . . . . . 25
Post-MCA Issues and Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Possible Application to U.S. Citizens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
DTA Challenges to Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Bismullah v. Gates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Parhat v. Gates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Boumediene v. Bush . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Constitutional Considerations and Options for Congress . . . . . . . . . . . . . . . . . . 39
Scope of Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
The Fact and Length of Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Conditions of Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Available Remedy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Extraterritorial Scope of Constitutional Writ of Habeas . . . . . . . . . . . 48
Use of Habeas Proceeding to Challenge the Jurisdiction
of a Military Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Congressional Authority over Federal Courts . . . . . . . . . . . . . . . . . . . . . . . 49
Separation of Powers Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Legislative Action in the 110th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
National Defense Authorization Provisions . . . . . . . . . . . . . . . . . . . . . . . . . 52
Habeas Corpus Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Bills to Regulate Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

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Enemy Combatant Detainees:
Habeas Corpus Challenges in Federal Court
Introduction
In the 2004 case Hamdi v. Rumsfeld,1 a divided Supreme Court declared that “a
state of war is not a blank check for the president”and ruled that persons deemed
“enemy combatants” have the right to challenge their detention before a judge or
other “neutral decision-maker.” The Court did not decide whether the same right
applies to aliens held as enemy combatants outside of the United 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 eliminated the federal courts’ statutory jurisdiction over
habeas claims by aliens challenging their detention at Guantanamo Bay, but provided
for limited appeals of status determinations made pursuant to the DOD procedures
for Combatant Status Review Tribunals (CSRTs) or by military commissions.
In Hamdan v. Rumsfeld, decided June 29, 2006, the Supreme Court rejected the
government’s argument that the DTA divested it of jurisdiction to hear that case, and
reviewed the validity of military commissions established to try suspected terrorists
of violations of the law of war, pursuant to President Bush’s military order. The
Court did not revisit its 2004 opinion in Hamdi v. Rumsfeld upholding the President’s
authority to detain individuals in connection with antiterrorism operations, and did
not resolve whether the petitioner could claim prisoner-of-war (POW) status, but held
1 542 U.S. 507 (2004).
2 542 U.S. 466 (2004).

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that “in undertaking to try Hamdan and subject him to criminal punishment, the
Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.”
In response to the Court’s decision, the 109th Congress enacted the Military
Commissions Act of 2006 (MCA) (P.L. 109-366) to authorize the President to
convene military commissions and to amend the DTA to further reduce the access of
aliens in U.S. custody to federal court 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 but later granted the petitioners’
motion to reconsider.6
In the consolidated cases of Boumediene v. Bush and Al Odah v. United States,7
decided June 12, 2008, the Supreme Court held that aliens designated as enemy
combatants and detained at Guantanamo Bay have the constitutional privilege of
habeas corpus. The Court also found that MCA § 7, which applied DTA review
procedures to petitioners’ claims, did not provide an adequate habeas substitute and
therefore acted as an unconstitutional suspension of the writ of habeas. The
immediate impact of the Boumediene decision is that detainees at Guantanamo may
petition a federal district court for habeas review of the circumstances of their
detention. Although the Court held that DTA review procedures were an inadequate
substitute for habeas, it made “no judgment as to whether the CSRTs, as currently
constituted, satisfy due process standards,” and emphasized that “both the DTA and
the CSRT process remain intact.”8 Whether these procedures violate due process
standards, facially or as applied in a given case, and whether a particular detainee is
being unlawfully held, are issues that will be addressed by the District Court when
reviewing the habeas claims of Guantanamo detainees.
In the meantime, the U.S. Court of Appeals for the Fourth Circuit addressed
whether it retained jurisdiction under the MCA to hear a petition on behalf of an alien
arrested in the United States and detained as an enemy combatant. In 2007, the court
granted habeas relief to a resident alien who was arrested in Illinois on criminal
charges but then transferred to South Carolina and detained in military custody as an
“enemy combatant.”9 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
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, 127 S.Ct. 1478 (2007).
6 Boumediene v. Bush, 127 S.Ct. 3078 (2007).
7 Boumediene v. Bush, 553 U.S. __, 128 S.Ct. 2229 (2008).
8 Id., 128 S.Ct. at 2270, 2275.
9 Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007).

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panel agreed that the MCA did not divest it of jurisdiction to hear the petition,
notwithstanding the MCA’s lack of geographical limits. The government asked for,
and was granted, a rehearing en banc.10 On rehearing, the full circuit agreed that the
jurisdictional issue had been resolved by the recent Supreme Court Boumediene
decision, but found little agreement on the other issue presented.11 As a result, the
case is remanded to the district court for a hearing to determine whether the petitioner
is properly detained to be an “enemy combatant.” The petitioner has reportedly asked
the Supreme Court to intervene.
This report provides an overview of the CSRT procedures, summarizes court
cases related to the detentions and the use of military commissions, and summarizes
the Detainee Treatment Act, as amended by the Military Commissions Act of 2006,
analyzing its effects on detainee-related litigation in federal court. The report
summarizes pending legislation and provides an analysis of relevant constitutional
issues that may have some bearing on Congress’s options with respect to the
Guantanamo detainees.
Background
The White House determined in February 2002 that Taliban detainees are
covered under the Geneva Conventions,12 while Al Qaeda detainees are not,13 but that
none of the detainees qualifies for the status of prisoner of war (POW).14 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, 2001,15 making
them eligible for trial by military commission.16 The Supreme Court, however, found
that the procedural rules established by the Department of Defense to govern the
10 Al-Marri v. Pucciarrelli, Case No. 06-7427 (4th Cir.).
11 Al-Marri v. Pucciarrelli, __ F.3d __, 2008 WL 2736787 (4th Cir. 2008).
12 The two most relevant conventions are the Geneva Convention Relative to the Treatment
of Prisoners of War, August 12, 1949, 6 U.S.T. 3317 (hereinafter “GPW”); and the Geneva
Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949,
6 U.S.T. 3516 (hereinafter “GC”).
13 White House Memorandum, “Humane Treatment of al Qaeda and Taliban Detainees”
(February 7, 2002), available at [http://www.washingtonpost.com/wp-srv/nation/documents/
020702bush.pdf].
14 For more history and analysis, see CRS Report RL31367, Treatment of ‘Battlefield
Detainees’ in the War on Terrorism, by Jennifer K. Elsea.
15 Order on Detention, Treatment, and Trial of Certain Non-Citizens in the War against
Terrorism, November 13, 2001, 66 Federal Register 57833 (2001)(hereinafter “MO” or
“military order”).
16 For an analysis of the military commission rules, see CRS Report RL33688, The Military
Commissions Act of 2006: Analysis of Procedural Rules and Comparison with Previous
DOD Rules and the Uniform Code of Military Justice, by Jennifer K. Elsea.

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military commissions were not established in accordance with the Uniform Code of
Military Justice (UCMJ).17 The following sections trace the judicial developments
with respect to the detention of alleged enemy combatants.
Rasul v. Bush18
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,19 “‘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.”20
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.
17 10 U.S.C. § 801 et seq.
18 542 U.S. 466 (2004).
19 339 U.S. 763 (1950).
20 Rasul, 542 U.S. at 478-79. When Eisentrager was decided in 1950, the Rasul majority
found, the “respective jurisdictions” of federal district courts were understood to extend no
farther than the geographical boundaries of the districts (citing Ahrens v. Clark, 335 U.S.
188 (1948)). According to the Court, that understanding was altered by a line 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.

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Without expressly overruling Eisentrager, the Court distinguished the cases at
issue to find Eisentrager inapplicable. Eisentrager listed six factors that precluded
those petitioners from seeking habeas relief: each petitioner “(a) is an enemy alien;
(b) has never been or resided in the United States; (c) was captured outside of our
territory and there held in military custody as a prisoner of war; (d) was tried and
convicted by a Military Commission sitting outside the United States; (e) for offenses
against laws of war committed outside the United States; (f) and is at all times
imprisoned outside the United States.”21 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 statute22 as well as the Alien Tort Statute,23 the
Court applied the same reasoning to conclude that nothing precluded the detainees
from bringing such claims before a federal court.24
The Court’s opinion left many questions unanswered. It did not clarify which
of the Eisentrager (or Rasul) factors would control under a different set of facts.25
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. The Hamdan opinion seems to indicate that a
majority of the Court regarded Eisentrager as a ruling denying relief on the merits
rather than a ruling precluding jurisdiction altogether.26 Under this view, it may be
argued, there was no statutory bar precluding detainees in U.S. custody overseas from
petitioning for habeas relief in U.S. courts, although it may be substantially more
21 Rasul, 542 U.S. at 475 (citing Eisentrager, 339 U.S. at 777).
22 28 U.S.C. § 1331(“The district courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United States.”).
23 28 U.S.C. § 1350 (“The district courts shall have original jurisdiction of any civil action
by an alien for a tort only, committed in violation of the law of nations or a treaty of the
United States.”).
24 Rasul, 542 U.S. at 484 (“nothing in Eisentrager or in any of our other cases categorically
excludes aliens detained in military custody outside the United States from the ‘privilege
of litigation’ in U.S. courts”).
25 The Court noted that “Eisentrager made quite clear that all six of the facts critical to its
disposition were relevant only to the question of the prisoners’ constitutional entitlement
to habeas corpus.” Rasul, 542 U.S. at 476 (emphasis original).
26 Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2793 (2006)(characterizing the Eisentrager
decision, 339 U.S. 763, 790(1950), as having rejected the treaty claim “on the merits”).
Justice Kennedy’s Boumediene opinion rejected the view that Eisentrager imposed a strict
jurisdictional test based solely on the sovereignty of the territory involved, finding instead
that all of the “practical considerations” considered in the opinion were integral to the
ultimate holding. Boumediene at 2257.

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difficult for such prisoners to identify a statutory or constitutional infraction that
would enable them to prevail on the merits.
The Court did not decide the merits of the petitions, although in a footnote the
majority opined that “Petitioners’ allegations — that, although they have engaged
neither in combat nor in acts of terrorism against the United States, they have been
held in Executive detention for more than two years in territory subject to the
long-term, exclusive jurisdiction and control of the United States, without access to
counsel and without being charged with any wrongdoing — unquestionably describe
‘custody in violation of the Constitution or laws or treaties of the United States.’”
The opinion left to lower courts such issues as whether the detentions are authorized
by Congress, who may be detained and what evidence might be adduced to determine
whether a person is an enemy combatant, or whether the Geneva Conventions afford
the detainees any protections. The Court did not address the extent to which
Congress might alter federal court jurisdiction over detainees’ habeas petitions, but
Boumediene appears to foreclose the option of eliminating it completely, at least
without an adequate substitute procedure. This issue is discussed more fully 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.27 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.”28 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
27 See Department of Defense (DOD) Fact Sheet, “Combatant Status Review Tribunals,”
available at [http://www.defenselink.mil/news/Jul2004/d20040707factsheet.pdf]. CSRT
proceedings are modeled on the procedures of Army Regulation (AR) 190-8, Enemy
Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees (1997), which
establishes administrative procedures to determine the status of detainees under the Geneva
Conventions and prescribes their treatment in accordance with international law. It does not
include a category for “unlawful” or “enemy” combatants, who would presumably be
covered by the other categories.
28 See DOD Press Release, “Combatant Status Review Tribunal Order Issued” (June 7,
2004), available at [http://www.defenselink.mil/releases/2004/nr20040707-0992.html];
Memorandum from the Deputy Secretary of Defense to the Secretary of the Navy, Order
Establishing Combatant Status Review Tribunal, July 7, 2004 (hereinafter “CSRT Order”),
available at [http://www.defenselink.mil/news/Jul2004/d20040707review.pdf];
Memorandum from Deputy Secretary of Defense, Implementation of Combatant Status
Review Tribunals Procedures for Enemy Combatants Detained at U.S. Naval Base
Guantanamo Bay, Cuba, July 14, 2006 (hereinafter “CSRT Implementing Directive”),
available at [http://www.defenselink.mil/news/Aug2006/d20060809CSRTProcedures.pdf].

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inadequate to form the basis for the jurisdiction of military commissions.29 Military
commissions must now determine whether a defendant is an unlawful enemy
combatant in order to assume jurisdiction.30
The tribunals are administrative rather than adversarial, but each detainee has
an opportunity to present “reasonably available” evidence and witnesses31 to a panel
of three commissioned officers to try to demonstrate that the detainee does not meet
the criteria to be designated as an “enemy combatant,” defined as “an individual who
was part of or supporting Taliban or al Qaida forces, or associated forces that are
engaged in hostilities against the United States or its coalition partners[,] ...
[including] any person who has committed a belligerent act or has directly supported
hostilities in aid of enemy armed forces.”32 Each detainee is represented by a military
officer (not a member of the Judge Advocate General (“JAG”) Corps)33 and may elect
to participate in the hearing or remain silent.34 The government’s evidence is
presented by the recorder, who is a military officer, preferably a judge advocate.35
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.”36 The
government is required to present all of its relevant evidence, including evidence that
29 See Josh White and Shailagh Murray, Guantanamo Ruling Renews The Debate Over
Detainees, WASH. POST, June 6, 2007, at A3.
30 United States v. Khadr, No. 07-001, (U.S.C.M.C.R. September 7, 2007) (finding CSRT
designation alone insufficient to confer jurisdiction on military commission, but holding that
the military commission judge has the inherent authority to determine the status of the
accused).
31 Witnesses from within the U.S. Armed Forces are not “reasonably available” if their
participation, as determined by their commanders, would adversely affect combat or support
operations. CSRT Implementing Directive, supra note 28, at encl. 1, para. G(9)(a). All
other witnesses, apparently including those from other agencies, are not “reasonably
available” if they decline to attend or cannot be reached, or if security considerations
prevents their presence. Id. at encl. 1, para. G(9)(b). It is unclear who makes the security
determination. Non-government witnesses appear at their own expense. Testimony is under
oath and may be provided in writing or by telephone or video.
32 CSRT Order, supra note 28, at 1.
33 CSRT Implementing Directive, supra note 28, at encl. 1, para. B.
34 Id. at encl. 1, para. F.
35 Id at encl. 1, para. C(2). In an affidavit submitted in DTA litigation, the government
acknowledged that it has not utilized the procedures set forth in the CSRT Implementing
Directive. See Bismullah v. Gates, 501 F.3d 178, 194-95 (D.C. Cir. 2007) (order on
motions) (Rogers, J. Concurring) (citing differences between written procedures and those
described by Rear Admiral James M. McGarrah in the Boumediene case). Rather than
having a JAG officer in the rank of O-3 or above compile government information, the
Department of Defense has utilized research, collection, and coordination teams to gather
information to be assessed by a “case writer” who has “received approximately two weeks
of training.” Id. at 94. Thus, the reporter assigned to represent the government’s case may
not have had access to all government information.
36 CSRT Implementing Directive, supra note 28, at encl. 1, para. G(7) & (11).

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tends to negate the detainee’s designation, to the tribunal.37 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.”38 Unclassified summaries of relevant evidence may be
provided to the detainee.39 The detainee’s personal representative may view
classified information and comment on it to the tribunal to aid in its determination40
but does not act as an advocate for the detainee.41 If the tribunal determines that the
preponderance of the evidence is insufficient to support a continued designation as
“enemy combatant” and its recommendation is approved through the chain of
command, the detainee will be informed of that decision upon finalization of
transportation arrangements (or earlier, if the task force commander deems it
appropriate).42
In March 2002, the Pentagon announced plans to create a separate process for
periodically reviewing the status of detainees.43 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.44 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 in Rasul and Boumediene that the detainees
have recourse to federal courts to challenge their detention, the extent to which they
may enforce any rights they may have under the Geneva Conventions and other law
37 Id. at encl. 1, para. G(8).
38 Id. at encl. 10.
39 Id. at encl. 1, para. E(3)(a).
40 Id. at encl. 1, para. H(7).
41 Id. at encl. 2, para. D (the personal representative is required to explain to the represented
detainee that he or she is neither the attorney or advocate for the detainee, and that any
information provided by the detainee is not confidential).
42 Id. at encl. 1, para. I(9)-(10).
43 See DOD Press Release, “DoD Announces Draft Detainee Review Policy” (March 3,
2004), available at [http://www.defenselink.mil/releases/2004/nr20040303-0403.html];
Memorandum from Deputy Secretary of Defense, Revised Implementation of
Administrative Review Procedures for Enemy Combatants Detained at U.S. Navy Base,
Guantanamo Bay, Cuba (July 14, 2006), available at [http://www.defenselink.mil/news/
Aug2006/d20060809ARBProceduresMemo.pdf].
44 CSRT Implementing Directive, supra note 28, at encl. 10 (implementing Detainee
Treatment Act provisions).

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continues to remain unclear. Prior to the enactment of the Detainee Treatment Act
provisions eliminating habeas review, the Justice Department argued primarily that
Rasul v. Bush merely decided the issue of jurisdiction, but that the 1950 Supreme
Court decision in Johnson v. Eisentrager45 remained applicable to limit the relief to
which the detainees may be entitled. While more than one district judge from the
D.C. Circuit agreed,46 others did not, holding for example that detainees have the
right to the assistance of an attorney.47 One judge found that a detainee has the right
to be treated as a POW until a “competent tribunal” decides otherwise,48 but the
appellate court reversed. The following sections summarize the three most important
decisions prior to the enactment of the MCA, including the cases that eventually
reached the Supreme Court as Boumediene v. Bush and Hamdan v. Rumsfeld. The
Court of Appeals for the D.C. Circuit had ordered these cases dismissed for lack of
jurisdiction on the basis of the MCA,49 but the Supreme Court reversed in both its
Hamdan and Boumediene decisions, returning the cases to the district court for
consideration on the merits. Also discussed is a Fourth Circuit case involving an
alien arrested in the United States and subsequently held in military custody as an
enemy combatant. The petition, brought by Ali al-Marri, may reach the Supreme
Court during its upcoming term. Al-Marri has also petitioned separately for relief
from certain conditions of detention.50
Khalid v. Bush51
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),52 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
45 339 U.S. 763 (1950) (holding that the federal courts did not have jurisdiction to hear a
petition on behalf of German citizens who had been convicted by U.S. military commissions
in China because the writ of habeas corpus was not available to “enemy alien[s], who at no
relevant time and in no stage of [their] captivity [have] been within [the court’s]
jurisdiction”).
46 Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005); Hamdan v. Rumsfed, 464 F. Supp.2d
9 (D.D.C. 2006).
47 Al Odah v. United States, 346 F. Supp. 2d 1 (D.D.C. 2004).
48 Hamdan v. Rumsfeld, 344 F. Supp. 2d 152 (D.D.C. 2004), rev’d 415 F.3d 33 (D.C. Cir.),
rev’d 548 U.S. 557 (2006).
49 Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007).
50 Al-Marri v. Gates, Case No. 05-2259 (D.S.C. filed March 13, 2008).
51 355 F. Supp. 2d 311 (D.D.C. 2005), vacated and dismissed sub nom. Boumediene v. Bush,
476 F.3d 981 (D.C. Cir. 2007), rev’d Boumediene v. Bush, 553 U.S. __, 128 S.Ct. 2229
(2008).
52 Authorization for Use of Military Force (“the AUMF”), P.L. 107-40, 115 Stat. 224 (2001).

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had been captured and detained pursuant to the President’s military order,53 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.”54
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,55 and gives the President virtually
unlimited authority to exercise his war power wherever enemy combatants are
found.56 The circumstances behind the off-battlefield captures did, however,
apparently preclude the petitioners from claiming their detentions violate the Geneva
Conventions.57 Other treaties put forth by the petitioners were found to be unavailing
because of their non-self-executing nature.58
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.”59 He
dismissed all seven petitions, ruling that “until Congress and the President act
further, there is ... no viable legal theory under international law by which a federal
court could issue a writ.”
On appeal, the Khalid case was consolidated with In re Guantanamo Detainee
Cases as Boumediene v. Bush.
53 Although the MO authorized detention as well as trial by military commissions, only
fifteen of the detainees were formally designated as subject to the MO.
54 355 F. Supp. 2d at 314.
55 Id. at 320.
56 Id. at 318. Judge Leon wrote:
The President’s ability to make the decisions necessary to effectively prosecute a
Congressionally authorized armed conflict must be interpreted expansively. Indeed, the
Constitution does not delegate to Congress the power to “conduct” or to “make” war;
rather, Congress has been given the power to “declare” war. This critical distinction lends
considerable support to the President’s authority to make the operational and tactical
decisions necessary during an ongoing conflict. Moreover, there can be no doubt that the
President’s power to act at a time of armed conflict is at its strongest when Congress has
specifically authorized the President to act.
57 Id. at 326.
58 Id. at 327. It may be argued that the habeas statute itself (28 U.S.C. § 2241), which
authorizes challenges of detention based on treaty violations, provided a means for private
enforcement, at least prior to its amendment by the MCA. See Eisentrager, 339 U.S. at 789
(while noting that the 1929 Geneva Convention did not provide for private enforcement,
considering but rejecting the habeas claim that the treaty vitiated jurisdiction of military
commission).
59 Id. at 330 (citations omitted).

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In re Guantanamo Detainee Cases60
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.61 Judge Green
rejected the government’s stance that the CSRTs provided more than sufficient due
process for the detainees. Instead, she identified two categories of defects. She
objected to the CSRTs’ failure to provide the detainees with access to material
evidence upon which the tribunal affirmed their “enemy combatant” status and the
failure to permit the assistance of counsel to compensate for the lack of access.
These circumstances, she said, deprived detainees of a meaningful opportunity to
challenge the evidence against them.
Second, in particular cases, the judge found that the CSRTs’ handling of
accusations of torture and the vague and potentially overbroad definition of “enemy
combatant” could violate the due process rights of detainees. Citing detainees’
statements and news reports of abuse, Judge Green noted that the possibility that
evidence was obtained involuntarily from the accused or from other witnesses,
whether by interrogators at Guantanamo or by foreign intelligence officials
elsewhere, could make such evidence unreliable and thus constitutionally
inadmissible as a basis on which to determine whether a detainee is an enemy
combatant. Judge Green objected to the definition of “enemy combatant” because
it appears to cover “individuals who never committed a belligerent act or who never
directly supported hostilities against the U.S. or its allies.” She noted that
government counsel had, in response to a set of hypothetical questions, stated that the
following could be treated as enemy combatants under the AUMF: “[a] little old lady
in Switzerland who writes checks to what she thinks is a charity that helps orphans
in Afghanistan but [what] really is a front to finance al-Qaeda activities, a person
who teaches English to the son of an al Qaeda member, and a journalist who knows
the location of Osama Bin Laden but refuses to disclose it to protect her source.”62
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
60 355 F. Supp. 2d 443 (D.D.C. 2005), vacated and dismissed sub nom. Boumediene v. Bush,
476 F.3d 981 (D.C. Cir. 2007), rev’d Boumediene v. Bush, 553 U.S. __, 128 S.Ct. 2229
(2008).
61 Id. at 465 (citing Hamdi v. Rumsfeld).
62 Id. at 475 (internal citations omitted).

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involvement in terrorist activities, would violate due process even if such detention
were found to be authorized by the AUMF.63
This case was consolidated with the Khalid decision and heard as Boumediene
v. Bush by the D.C. Circuit Court of Appeals, and on appeal, the Supreme Court.
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,64 arguing that the military commission rules and
procedures were inconsistent with the UCMJ65 and that he had the right to be treated
as a prisoner of war under the Geneva Conventions.66 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,67
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,68
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),69 which
63 Id. at 476.
64 344 F. Supp. 2d 152 (D.D.C. 2004), 415 F.3d 33 (D.C. Cir. 2005), rev’d 548 U.S. 557
(2006).
65 10 U.S.C. §§ 801 et seq.
66 There are four Conventions, the most relevant of which is The Geneva Convention
Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 3317 (hereinafter
“GPW”).
67 344 F. Supp. 2d at 161.
68 GPW art. 3. For a discussion of Common Article 3, see CRS Report RL31367, Treatment
of “Battlefield Detainees” in the War on Terrorism, by Jennifer K. Elsea.
69 P.L. 109-148, §1005(e)(1) provides that “no court … shall have jurisdiction to hear or
consider … an application for … habeas corpus filed by … an alien detained … at
Guantanamo Bay.” The provision was not yet law when the appellate court decided against
(continued...)

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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.70 The
Court also declined to dismiss the appeal as urged by the government on the basis
that federal courts should abstain from intervening in cases before military tribunals
that have not been finally decided,71 noting the dissimilarities between military
commission trials and ordinary courts-martial of service members pursuant to
procedures established by Congress.72 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 21,73
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.
69 (...continued)
the petitioner, Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005), rev’d 548 U.S. 557
(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. Hamdan, 126 S.Ct. at 2769, and n.14.
70 Id. at 2763-64. To resolve the question, the majority employed canons of statutory
interpretation supplemented by legislative history, avoiding the question of whether the
withdrawal of the Court’s jurisdiction would constitute a suspension of the Writ of Habeas
Corpus, or whether it would amount to impermissible “court-stripping.” Justice Scalia,
joined by Justices Alito and Thomas in his dissent, interpreted the DTA as a revocation of
jurisdiction.
71 Id. at 2769-70. The court below had also rejected this argument, 413 F.3d 33, 36 (D.C.
Cir. 2005).
72 See Hamdan, 126 S.Ct. at 2771 (stating that the bodies established by the Department of
Defense to review the decisions of military commissions “clearly lack the structural
insulation from military influence that characterizes the Court of Appeals for the Armed
Forces....”).
73 10 U.S.C. § 821 (“The provisions of [the UCMJ] conferring jurisdiction upon
courts-martial do not deprive military commissions, provost courts, or other military
tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or
by the law of war may be tried by military commissions, provost courts, or other military
tribunals.”)

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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.”74 It disagreed with the government’s position that
Congress had authorized the commissions either when it passed the Authorization to
Use Military Force (AUMF)75 or the DTA. Although the Court assumed that the
AUMF activated the President’s war powers, it did not view the AUMF as expanding
the President’s powers beyond the authorization set forth in the UCMJ. The Court
also noted that the DTA, while recognizing the existence of military commissions,
does not specifically authorize them. At most, these statutes “acknowledge a general
Presidential authority to convene military commissions in circumstances where
justified under the ‘Constitution and laws,’ including the law of war.”76
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.77 The D.C. Circuit
nevertheless held that the Geneva Conventions are never enforceable in federal
courts.78 The Supreme Court disagreed, finding the Conventions were applicable as
incorporated by UCMJ Article 21, because “compliance with the law of war is the
condition upon which the authority set forth in Article 21 is granted.”79 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.”80
74 Hamdan, 126 S.Ct. at 2773 (citing Congress’s powers to “declare War ... and make Rules
concerning Captures on Land and Water,” Art. I, §8, cl. 11, to “raise and support Armies,”
Id., cl. 12, to “define and punish ... Offences against the Law of Nations,” Id., cl. 10, and
“To make Rules for the Government and Regulation of the land and naval Forces,” Id., cl.
14.).
75 P.L. 107-40, 115 Stat. 224 (2001).
76 Hamdan, 126 S.Ct. at 2775.
77 28 U.S.C. § 2241(c)(3)(permitting petitions by prisoners “in custody in violation of the
Constitution or laws or treaties of the United States”).
78 See 415 F.3d at 39 (citing Johnson v. Eisentrager, 339 U.S. 763, 789, n. 14(1950)).
79 Hamdan, 126 S.Ct. at 2794.
80 GPW art. 3 § 1(d). The identical provision is included in each of the four Geneva
Conventions and applies to any “conflict not of an international character.” The majority
declined to accept the President’s interpretation of Common Article 3 as inapplicable to the
conflict with al Qaeda and interpreted the phrase “in contradistinction to a conflict between
nations,” which the Geneva Conventions designate a “conflict of international character”.
Hamdan, 126 S.Ct. at 2795.

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CRS-15
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.81 Justice Alito, joined by Justices Scalia and Thomas, dissented,
arguing that the Court is bound to defer to the President’s plausible interpretation of
the treaty language.
Analysis. While the Hamdan Court declared the military commissions as
constituted under the President’s Military Order to be “illegal,” it left open the
possibility that changes to the military commission rules could cure any defects by
bringing them within the law of war and conformity with the UCMJ, or by asking
Congress to authorize or craft rules tailored to the “Global War on Terrorism”
(GWOT). The Court did not resolve the extent to which the detainees, as aliens held
outside of U.S. territory, have constitutional rights enforceable in federal court.
The decision may affect the treatment of detainees outside of their criminal
trials; for example, in interrogations for intelligence purposes. Common Article 3
of the Geneva Conventions mandates that all persons taking no active part in
hostilities, including those who have laid down their arms or been incapacitated by
capture or injury, are to be treated humanely and protected from “violence to life and
person,” torture, and “outrages upon personal dignity, in particular, humiliating and
degrading treatment.” Insofar as these protections are incorporated in the UCMJ and
other laws, it would seem the Court is ready to interpret and adjudicate them, to the
extent it retains jurisdiction to do so. It is not clear how the Court views the scope
of the GWOT, however, because its decisions on the merits have been limited to
cases arising out of hostilities in Afghanistan.
The opinion reaffirms the holding in Rasul v. Bush82 that the AUMF does not
provide the President a “blank check,” and, by finding in favor of a noncitizen held
overseas, seems to have expanded the Hamdi comment that
[w]hatever power the United States Constitution envisions for the Executive in
its exchanges with other nations or with enemy organizations in times of conflict,
it most assuredly envisions a role for all three branches when individual liberties
are at stake.83
81 Id. at 2796-97 (plurality opinion); Id. (Kennedy, J., concurring) at 2804. Justice Stevens,
joined by Justices Ginsburg, Breyer, and Souter, further based their conclusion on the basis
that M.C.O. No. 1 did not meet all criteria of art. 75 of Protocol I to the Geneva Conventions
of 1949, adopted in 1977 (Protocol I). While the United States is not party to Protocol I, the
plurality noted that many authorities regard it as customary international law.
82 542 U.S. 466 (2004).
83 542 U.S. 507, 535 (2004).

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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.84 Expressly or implicitly, all eight participating
Justices applied the framework set forth by Justice Jackson in his famous
concurrence in the Steel Seizures case,85 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.86 The Military
Commissions Act of 2006 likely resolves many issues regarding the scope of
authority the President may exercise; however, the constitutionality of the various
measures remains to be resolved, assuming the courts retain jurisdiction to resolve
them.
Al-Marri
The case of Ali Saleh Kahlah al-Marri differs significantly from cases discussed
above in that the petitioner, a lawful alien resident, was arrested and is imprisoned
within the United States. Al-Marri, a Qatari student, was arrested in December 2001
in Peoria, Illinois, and transported to New York City, where he was held as a
material witness for the grand jury investigating the 9/11 attacks. He was later
charged with financial fraud and making false statements and transferred back to
Peoria. Before his case went to trial, however, he was declared an “enemy
combatant” and transferred to military custody in South Carolina. Al-Marri’s counsel
filed a petition for habeas corpus challenging al-Marri’s designation and detention
as an “enemy combatant.” The petition was eventually dismissed for lack of
jurisdiction by the U.S. Court of Appeals for the Seventh Circuit,87 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.88 The government provided a
declaration asserting that al-Marri is closely associated with al Qaeda and had been
sent to the United States prior to September 11, 2001 to serve as a “sleeper agent” for
al Qaeda in order to “facilitate terrorist activities and explore disrupting this
84 See, e.g., Oversight of the Department of Justice: Hearing Before the Senate Judiciary
Committee, 107th Cong. (2002) (testimony of Attorney General John Ashcroft) (arguing that
a statute that could be read to interfere with the executive power to detain enemy combatants
must be interpreted otherwise to withstand constitutional scrutiny).
85 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
86 For information about relevant legislation, see CRS Report RL31600, The Department of
Defense Rules for Military Commissions: Analysis of Procedural Rules and Comparison
with Proposed Legislation and the Uniform Code of Military Justice.
87 Al-Marri v. Rumsfeld, 360 F.3d 707 (7th Cir. 2004), cert. denied 543 U.S. 809 (2004).
88 Al-Marri v. Hanft, 378 F. Supp.2d 673 (D. S.C. 2005) (order denying summary judgment).

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CRS-17
country’s financial system through computer hacking.”89 The magistrate judge
recommended the dismissal of the petition on the basis of information the
government provided, which al-Marri did not attempt to rebut and which the
magistrate judge concluded was sufficient for due process purposes in line with the
Hamdi decision.90 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.”91
Al-Marri appealed, and the government moved to dismiss on the basis that the
MCA strips the court of jurisdiction. The petitioner asserted that Congress did not
intend to deprive him of his right to habeas or that, alternatively, the MCA is
unconstitutional. The majority avoided the constitutional question by finding that al-
Marri does not meet the statutory definition as an alien who “has been determined by
the United States to have been properly detained as an enemy combatant or is
awaiting such determination.”92
Turning to the merits, the majority found that al-Marri does not fall within the
legal category of “enemy combatant” within the meaning of Hamdi, and that the
government could continue to hold him only if it charges him with a crime,
89 Al-Marri v. Pucciarelli, slip op. at 4 (4th Cir. 2008)(Motz, J., concurring)(citing declaration
Jeffrey N. Rapp, Director of the Joint Intelligence Task Force for Combating Terrorism).
90 Al-Marri v. Wright, 443 F. Supp. 2d 774 (D. S.C. 2006) (citing Hamdi v. Rumsfeld, 542
U.S. 507 (2004)). With respect to the “due process hearing” required to establish that an
enemy combatant is properly held, the Hamdi plurality 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).
91 Id. at 778-80.
92 The court held that the MCA requires a two-step process for determining whether persons
are properly detained as enemy combatants, but that the President’s determination of the
petitioner’s “enemy combatant” status fulfilled only the first step. The court next found that
Al-Marri could not be said to be awaiting such a determination within the meaning of the
MCA, inasmuch as the government was arguing on the merits that the presidential
determination had provided all of the process that was due, and the government had offered
the possibility of bringing Al-Marri before a CSRT only as an alternative course of action
in the event the petition were dismissed. Further, the majority looked to the legislative
history of the MCA, from which it divined that Congress did not intend to replace habeas
review with the truncated review available under the amended DTA in the case of aliens
within the United States, who it understood to have a constitutional as opposed to merely
statutory entitlement to seek habeas review. Al-Marri v. Wright , 487 F.3d 160, 172 (4th Cir.
2007), vacated sub nom. Al-Marri v. Pucciarelli, __F.3d __ (2008)(per curiam).

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commences deportation proceedings, obtains a material witness warrant in
connection with grand jury proceedings, or detains him for a limited time pursuant
to the Patriot Act.93 In so holding, the majority rejected the government’s contention
that the AUMF authorizes the President to order the military to seize and detain
persons within the United States under the facts asserted by the government, or that,
alternatively, the President has inherent constitutional authority to order the
detention.
The government cited the Hamdi decision and the Fourth Circuit’s decision in
Padilla v. Hanft94 to support its contention that al-Marri is an enemy combatant
within the meaning of the AUMF and the law of war. The court, however,
interpreted Hamdi as confirming only that “the AUMF is explicit congressional
authorization for the detention of individuals in the narrow category ... [of]
individuals who were ‘part of or supporting forces hostile to the United States or
coalition partners in Afghanistan and who engaged in an armed conflict against the
United States there.’”95 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.”96 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,97 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.98 In
contrast, al-Marri’s situation was to be likened to Ex parte Milligan,99 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.100 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
93 Id. at 196.
94 423 F.3d 386 (4th Cir. 2005). The government is no longer holding Jose Padilla as an
enemy combatant, having turned him over to civil authorities for trial on charges associated
with terrorism.
95 Al-Marri, 487 F.3d at 180 (citing Hamdi at 516-17)(emphasis in original).
96 Id. (citing Padilla, 423 F.3d at 390-91).
97 317 U.S. 1 (1942).
98 Al-Marri, 487 F.3d at 179 (citing Quirin, 317 U.S. at 37-38; Hamdi, 542 U.S. at 519;
Padilla, 423 F.3d at 391).
99 71 U.S. (4 Wall.) 2 (1866).
100 Al-Marri at 189.

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Qaeda agents operating within the continental United States.”101 He would have
found no meaningful distinction between the present case and Padilla.
The government petitioned for and was granted a rehearing en banc.102 On
rehearing, the narrowly divided Fourth Circuit full bench rejected the earlier panel’s
decision in favor of the government’s position that al-Marri fits the legal definition
of “enemy combatant,” but also reversed the district court’s decision that al-Marri
was not entitled to present any more evidence to refute the government’s case against
him. Four of the judges on the panel would have retained the earlier decision,
arguing that it was not within the court’s power to expand the definition of “enemy
combatant” beyond the law-of-war principles at the heart of the Supreme Court’s
Hamdi decision.103 However, these four judges joined in Judge Traxler’s opinion to
remand for evidentiary proceedings in order “at least [to] place the burden on the
Government to make an initial showing that normal due process protections are
unduly burdensome and that the Rapp declaration is “the most reliable available
evidence,” supporting the Government’s allegations before it may order al-Marri’s
military detention.”104
Judge Traxler, whose opinion is controlling for the case although not joined in
full by any other panel member, agreed with the four dissenting judges that the
AUMF “grants the President the power to detain enemy combatants in the war
against al Qaeda, including belligerents who enter our country for the purpose of
committing hostile and war-like acts such as those carried out by the al Qaeda
operatives on 9/11.”105 Accordingly, he would define “enemy combatant” in the
GWOT to include persons who “associate themselves with al Qaeda” and travel to
the United States “for the avowed purpose of further prosecuting that war on
American soil, ... even though the government cannot establish that the combatant
also ‘took up arms on behalf of that enemy and against our country in a foreign
101 Id. at 196 (Hudson, J., dissenting).
102 Al-Marri v. Pucciarelli, __F.3d __, 2008 WL 2736787 (4th Cir. 2008)(per curiam). The
intervening Supreme Court decision in Boumediene led the court to reject the government’s
contention that the MCA had divested the court of jurisdiction.
103 Id. at *13 (Motz, J. concurring)(citing Hamdi, 542 U.S. at 518). Judge Motz, joined by
three other judges, characterized leading precedents as sharing two characteristics:
(1) they look to law-of-war principles to determine who fits within the “legal category”
of enemy combatant; and (2) following the law of war, they rest enemy combatant status
on affiliation with the military arm of an enemy nation.
Under their interpretation of the law of war, there is no combatant status in non-international
armed conflict, where detention is controlled by domestic law. For a discussion of U.S.
practice with respect to the wartime detention of suspected enemies, whether civilians or
combatants, see CRS Report RL31724, Detention of American Citizens as Enemy
Combatants, by Jennifer K. Elsea.
104 Al-Marri, at *32.
105 Id. at *32 (Traxler, J., concurring).

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combat zone of that war.’”106 Under this definition, American citizens arrested in the
United States could also be treated as enemy combatants under similar allegations,107
at least if they had traveled abroad and returned for the purpose of engaging in
activity related to terrorism on behalf of al Qaeda.
However, Judge Traxler did not agree that al-Marri had been afforded due
process by the district court to challenge the factual basis for his designation as an
enemy combatant. While recognizing that the Hamdi plurality had suggested that
hearsay evidence might be adequate to satisfy due process requirements for proving
enemy combatant status, Judge Traxler did not agree that such relaxed evidentiary
standards are necessarily appropriate when dealing with a person arrested in the
United States:
Because al-Marri was seized and detained in this country,... he is entitled to
habeas review by a civilian judicial court and to the due process protections
granted by our Constitution, interpreted and applied in the context of the facts,
interests, and burdens at hand. To determine what constitutional process al-Marri
is due, the court must weigh the competing interests, and the burden-shifting
scheme and relaxed evidentiary standards discussed in Hamdi serve as important
guides in this endeavor. Hamdi does not, however, provide a cookie-cutter
procedure appropriate for every alleged enemy-combatant, regardless of the
circumstances of the alleged combatant’s seizure or the actual burdens the
government might face in defending the habeas petition in the normal way.108
106 Id. at *37. Judge Traxler further suggested that the types of activities that would
distinguish a combatant from a civilian enemy would include violent activities. See id. At
*39 (describing the allegations that al-Marri “directly allied himself with al Qaeda abroad,
volunteered for assignments (including a martyr mission), received training and funding
from al Qaeda abroad, was dispatched by al Qaeda to the United States as an al Qaeda
operative with orders to serve as a sleeper agent, and was tasked with facilitating and
ultimately committing terrorist attacks against the United States within this country”). The
dissenting judges suggested similar definitions for determining who may be treated as an
“enemy combatant.” See id. at *61 (Williams, J., concurring in part and dissenting in
part)(defining enemy combatant covered by the AUMF as “an individual who meets two
criteria: (1) he attempts or engages in belligerent acts against the United States, either
domestically or in a foreign combat zone; (2) on behalf of an enemy force”); id. at *99
(Wilkinson, J., concurring in part and dissenting in part)(proposing two-part test in which
“an ‘enemy’ is any individual who is (1) a member of (2) an organization or nation against
whom Congress has declared war or authorized the use of military force” and a combatant
is “ a person who knowingly plans or engages in conduct that harms or aims to harm persons
or property for the purpose of furthering the military goals of an enemy nation or
organization”).
107 See id. at *53 (Gregory, J., concurring).
108 Id. at *47. Judge Traxler formulated a general rule under which such enemy combatants
“would be entitled to the normal due process protections available to all within this country,
including an opportunity to confront and question witnesses against him[, unless] the
government can demonstrate to the satisfaction of the district court that this is impractical,
outweighed by national security interests, or otherwise unduly burdensome because of the
nature of the capture and the potential burdens imposed on the government to produce
non-hearsay evidence and accede to discovery requests, [in which case] alternatives should
(continued...)

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Al-Marri’s case will return to the district court for evidentiary hearings, unless
the Supreme Court decides to grant certiorari or, perhaps, if the government ceases
to detain him as an “enemy combatant.”
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,109 and expressly bans cruel, inhuman, or degrading treatment
of detainees in the custody of any U.S. agency.110 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.111 The provision does not
create a cause of action for detainees to ask a court for relief based on inconsistent
treatment, and it divests the courts of jurisdiction to hear challenges by those detained
at Guantanamo Bay based on their treatment or living conditions.112 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.113 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
108 (...continued)
be considered and employed.” Id. at *49.
109 Section 1002 of P.L. 109-148 requires DOD to follow the Army Field Manual for
intelligence interrogation. See DEPARTMENT OF THE ARMY FIELD MANUAL 34-52,
INTELLIGENCE INTERROGATION (1992), available at [http://www4.army.mil/ocpa/reports/
ArmyIGDetaineeAbuse/FM34-52IntelInterrogation.pdf] (September 1, 2004). For an
analysis of the approved interrogation procedures, see CRS Report RL32567, Lawfulness
of Interrogation Techniques under the Geneva Conventions, by Jennifer K. Elsea.
110 Section 1003 of P.L. 109-148. See CRS Report RL33655, Interrogation of Detainees:
Overview of the McCain Amendment, by Michael John Garcia.
111 Section 1003(d) of P.L. 109-148. For more information, see CRS Report RL32438, U.N.
Convention Against Torture (CAT): Overview and Application to Interrogation Techniques,
by Michael John Garcia.
112 Section 1005 of P.L. 109-148 (denying aliens in military custody privilege to file writ of
habeas corpus or “any other action against the United States or its agents relating to any
aspect of the[ir] detention. . .”).
113 Section 1004 of P.L. 109-148 provides a defense in litigation related to “specific
operational practices,” involving detention and interrogation where the defendant
did not know that the practices were unlawful and a person of ordinary sense and
understanding would not know the practices were unlawful. Good faith reliance
on advice of counsel should be an important factor, among others, to consider in
assessing whether a person of ordinary sense and understanding would have
known the practices to be unlawful.

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degrading treatment on the grounds that the President needs “maximum flexibility
in dealing with the global war on terrorism.”114
The DTA also includes a modified version of the “Graham-Levin
Amendment,”115 which requires the Defense Department to submit to the Armed
Services and Judiciary Committees the procedural rules for determining detainees’
status.116 The amendment neither authorizes nor requires a formal status
determination, but it does require that certain congressional committees be notified
30 days prior to the implementation of any changes to the rules. As initially adopted
by the Senate, the amendment would have required these procedural rules to preclude
evidence determined by the board or tribunal to have been obtained by undue
coercion, however, the conferees modified the language so that the tribunal or board
must assess, “to the extent practicable ... whether any statement derived from or
relating to such detainee was obtained as a result of coercion” and “the probative
value, if any, of any such statement.”
The Graham-Levin Amendment also eliminated the federal courts’ statutory
jurisdiction over habeas claims by aliens detained at Guantanamo Bay, but provides
for limited appeals of status determinations made pursuant to the DOD procedures
for Combatant Status Review Tribunals (CSRTs). In June 2008, the Supreme Court
invalidated the provision that eliminated habeas corpus jurisdiction, but stated that
the DTA appellate process “remains intact,”117 although it appears that the process
is not an adequate substitute for habeas review. However, it no longer constitutes
the sole avenue by which a detainee may seek judicial review of his detention, as a
detainee may also seek habeas review by a federal district court. It appears that
courts will not require detainees to exhaust their options under the DTA appeals
process prior to seeking habeas review, at least in cases currently pending.
Under the appellate process prescribed by the DTA, the D.C. Circuit Court of
Appeals has exclusive jurisdiction to hear appeals of any status determination made
by a “Designated Civilian Official,” but the review is limited to a consideration of
whether the determination was made consistently with applicable DOD procedures,
including whether it is supported by the preponderance of the evidence, but allowing
a rebuttable presumption in favor of the government. The procedural rule regarding
the use of evidence obtained through undue coercion applies prospectively only, so
that detainees who have already been determined by CSRTs to be enemy combatants
may not base an appeal on the failure to comply with that procedure. Detainees may
114 See Eric Schmitt, Exception Sought in Detainee Abuse Ban, N.Y. TIMES, October 25,
2005, at 16.
115 151 CONG. REC. S12667 (daily ed. November 10, 2005)(introduced by Sen. Graham,
passed by roll call vote, 49 - 42), as amended by S.Amdt. 2524, 151 CONG. REC. S12771
(daily ed. November 14, 2005).
116 The amendment refers to both the Combatant Status Review Tribunals (“CSRTs”), the
initial administrative procedure to confirm the detainees’ status as enemy combatants, and
the Administrative Review Boards, which were established to provide annual review that
the detainees’ continued detention is warranted.
117 Boumediene v. Bush, 553 U.S. __, 128 S.Ct. 2229, 2275 (2008).

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also appeal status determinations on the basis that, “to the extent the Constitution and
laws of the United States are applicable, whether the use of such standards and
procedures to make the determination is consistent with the Constitution and laws of
the United States.” Jurisdiction was to cease if the detainee were transferred from
DOD custody. (Currently, jurisdiction is cut off if the detainee is transferred from
U.S. custody.)
The DTA also provides for an appeal to the Court of Appeals for the District of
Columbia Circuit of final sentences rendered by a military commission. As initially
enacted, the DTA required the court to review capital cases or cases in which the
alien was sentenced to death or to a term of imprisonment for 10 years or more, and
made review over convictions with lesser penalties discretionary. The scope of
review was limited to considering whether the decision applied the correct standards
consistent with Military Commission Order No. 1 (implementing the President’s
Military Order) and whether those standards were consistent with the Constitution
and laws of the United States, to the extent applicable.
The Military Commissions Act of 2006 (MCA)
After the Court’s decision in Hamdan, the Bush Administration proposed
legislation to Congress,118 a version of which was enacted on October 17, 2006. The
Military Commissions Act of 2006 (MCA) authorized the trial of certain detainees
by military commission and prescribed detailed rules to govern their procedures.119
The MCA also amended the DTA provisions regarding appellate review and habeas
corpus jurisdiction.
Provisions Affecting Court Jurisdiction
The MCA expanded the DTA to make its review provisions the exclusive
remedy for all aliens detained as enemy combatants anywhere in the world, rather
than only those housed at Guantanamo Bay, Cuba. It does not, however, require that
118 Senator Frist introduced the Administration’s proposal as the “Bringing Terrorists to
Justice Act of 2006,” S. 3861. The Senate Armed Services Committee reported favorably
a bill called the “Military Commissions Act of 2006” (S. 3901), which was in many respects
similar to the Administration’s proposal, but varied with respect to jurisdiction and some
rules of evidence. The House Armed Services Committee approved H.R. 6054, also called
the “Military Commissions Act of 2006,” which closely tracked the Administration’s
proposal. After reaching an agreement with the White House with respect to several
provisions in S. 3901, Senator McCain introduced S. 3930, again entitled the “Military
Commissions Act of 2006.” Representative Hunter subsequently introduced a modified
version of H.R. 6054 as H.R. 6166, which the House of Representatives passed on
September 28, 2006. A manager’s amendment to S. 3930, substantially identical to the bill
passed by the House, was passed by the Senate the following day.
119 P.L. 109-366. For a further description of the procedures associated with these military
commissions, see CRS Report RL33688, The Military Commissions Act of 2006: Analysis
of Procedural Rules and Comparison with Previous DOD Rules and the Uniform Code of
Military Justice, by Jennifer K. Elsea.

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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, except perhaps by means of habeas review.
Appeals from the final decisions of military commissions continue to go to the
United States Court of Appeals for the District of Columbia Circuit,120 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.121
Appeals may be based on inconsistencies with the procedures set forth by the MCA,
or, to the extent applicable, the Constitution or laws of the United States.
The MCA § 7 revoked U.S. courts’ jurisdiction to hear habeas corpus petitions
by all aliens in U.S. custody as enemy combatants, including lawful enemy
combatants, regardless of the place of custody. It replaced 28 U.S.C. § 2241(e), the
habeas provision added by the DTA, with language providing that
(1) No court, justice, or judge shall have jurisdiction to hear or consider an
application for a writ of habeas corpus filed by or on behalf of an alien detained
by the United States who has been determined by the United States to have been
properly detained as an enemy combatant or is awaiting such determination.
(2) Except as provided in paragraphs (2) [review of CSRT determinations] and
(3) [review of final decisions of military commissions] of section 1005(e) of the
Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge
shall have jurisdiction to hear or consider any other action against the United
States or its agents relating to any aspect of the detention, transfer, treatment,
trial, or conditions of confinement of an alien who is or was detained by the
United States and has been determined by the United States to have been
properly detained as an enemy combatant or is awaiting such determination.122
This amendment took effect on the date of its enactment, and applied to “all
cases, without exception, pending on or after the date of [enactment] which relate to
any aspect of the detention, transfer, treatment, trial, or conditions of detention of an
alien detained by the United States since September 11, 2001.” In Boumediene v.
Bush, discussed infra, the Supreme Court held that MCA § 7 constituted an
unconstitutional suspension of the writ of habeas corpus, and authorized
Guantanamo detainees to petition federal district courts for habeas review of CSRT
determinations of their enemy combatant status.
Under the DTA appeals provision, there is no apparent limit to the amount of
time a detainee could spend awaiting a determination as to combatant status. Aliens
who continue to be detained despite having been determined not to be enemy
combatants are not permitted to challenge their continued detention or their
treatment, nor are they able to protest their transfer to another country, for example,
on the basis that they fear torture or persecution. However, these matters may be
120 MCA § 5.
121 10 U.S.C. § 950g(b).
122 MCA § 7.

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raised in habeas petition. The extent of relief the courts may be able to grant remains
to be addressed by the courts.
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.123 Thus, for instance, Common
Article 3 of the 1949 Geneva Conventions, which prohibits the “passing of sentences
and the carrying out of executions without previous judgment pronounced by a
regularly constituted court, affording all the judicial guarantees which are recognized
as indispensable by civilized peoples,” has been used as a basis for challenging the
confinement of detainees.124
Section 5 of the MCA, however, specifically precludes the application of the
Geneva Conventions to habeas or other civil proceedings.125 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.126 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.127
In addition, the act provides that the President shall have the authority to
interpret the meaning of the Geneva Conventions.128 The intended effect of this
123 28 U.S.C. § 2241.
124 GPW art. 3 § 1(d). See Hamdan, 126 S.Ct. at 2796-2797 (noting the application of this
provision of the Geneva Conventions to detainees through the UCMJ Article 21).
125 MCA § 5(a) provides that “No person may invoke the Geneva Conventions or any
protocols thereto in any habeas corpus or other civil action or proceeding to which the
United States, or a current or former officer, employee, member of the Armed Forces, or
other agent of the United States is a party as a source of rights in any court of the United
States or its States or territories.”
126 MCA § 3 (10 U.S.C. § 948c) provides that “No alien unlawful enemy combatant subject
to trial by military commission under this chapter may invoke the Geneva Conventions as
a source of rights.”
127 MCA § 3 (10 U.S.C. § 948b(f), as amended) provides that a military commission is a
“regularly constituted court, affording all the necessary ‘judicial guarantees which are
recognized as indispensable by civilized peoples’ for purposes of common Article 3 of the
Geneva Conventions.” While this language could be construed as directing a court to find
that the MCA does not conflict with the Geneva Conventions, a better reading would appear
to be that, to the extent that there is a conflict between the MCA and the Geneva
Conventions, that the MCA should be given precedence. See generally Robertson v. Seattle
Audubon Soc’y, 503 U.S. 429 (1992).
128 MCA § 6(a)(3)(A) provides that “the President has the authority for the United States to
interpret the meaning and application of the Geneva Conventions and to promulgate higher
(continued...)

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provision is unclear. While the President generally has a role in the negotiation,
implementation, and domestic enforcement of treaty obligations,129 this power does
not generally extend to “interpreting” treaty obligations, a role more traditionally
associated with courts.130 In general, Congress is prohibited from exercising powers
allocated to another branch of government.131 In United States v. Klein,132 the
Congress passed a law designed to frustrate a finding of the Supreme Court as to the
effect of a presidential pardon.133 Similarly, a law that was specifically intended to
grant the authority of the President to adjudicate or remedy treaty violations could
violate the doctrine of separation of powers, as providing relief from acts in violation
of treaties is a judicial branch function.134 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.135 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
regard is already firmly established.136 Another possible meaning is that the President
128 (...continued)
standards and administrative regulations for violations of treaty obligations which are not
grave breaches of the Geneva Conventions.”
129 See, e.g., id. (President is given power to promulgate higher standards and administrative
regulations for violations of treaty obligations).
130 See, e.g., MCA § 6(a)(3)(B)(“No foreign or international source of law shall supply a
basis for a rule of decision in the courts of the United States in interpreting the prohibitions
enumerated in subsection (d) of such section 2441.”).
131 See Dickerson v. United States, 530 U.S. 428, 438 (2000)(striking down congressional
statute purporting to overturn the Court’s Fourth Amendment ruling in Miranda v. Arizona);
City of Boerne v. Flores, 521 U.S. 507, 519 (1997)(Congress’ enforcement power under the
Fourteenth Amendment does not extend to the power to alter the Constitution); Plaut v.
Spendthrift Farm, 514 U.S. 211, 225 (Congress may not disturb final court rulings).
132 80 U.S. (13 Wall.) 128 (1871).
133 The Court struck down the law, essentially holding that the Congress had an illegitimate
purpose in passage of the law. “[T]he language of the proviso shows plainly that it does not
intend to withhold appellate jurisdiction except as a means to an end. Its great and
controlling purpose is to deny to pardons granted by the President the effect which this court
had adjudged them to have. . . . It seems to us that this is not an exercise of the
acknowledged power of Congress to make exceptions and prescribe regulations to the
appellate power.” 80 U.S. at 146. The Court also found that the statue impaired the effect
of presidential pardon, and thus “infringe[ed] the constitutional power of the Executive.”
Id. at 147.
134 See generally Miller v. French, 530 U.S. 327, 350-51 (2000)(Souter, J., concurring).
135 MCA § 6(a)(3)(B).
136 “If the country with which the treaty is made is dissatisfied with the action of the
legislative department, it may present its complaint to the executive head of the government,
(continued...)

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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.137
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.138 Whether the President already had such
power absent this language is beyond the scope of this report.
Post-MCA Issues and 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 Bay139 and the petition of an alien detained as an enemy combatant in
136 (...continued)
and take such other measures as it may deem essential for the protection of its interests. The
courts can afford no redress. Whether the complaining nation has just cause of complaint,
or our country was justified in its legislation, are not matters for judicial cognizance.”
Whitney v. Robertson 124 U.S. 190, 194 (1888).
137 MCA § 5(a). It is unclear why the MCA addresses the application of the Geneva
Convention to habeas corpus proceeding brought by detainees, since such suits are
precluded by the DTA and the MCA. Section 1405(e) of P.L. 109-63; MCA, §7(a). It may
be intended to apply to habeas cases brought by U.S. citizens or by aliens who do not fall
under the definition of “enemy combatant.” On the other hand, as will be discussed infra,
there may be constitutional issues associated with limiting access of enemy combatants to
habeas corpus proceeding. In the event the habeas restrictions of the DTA are found to be
unconstitutional, then this provision may become relevant to those proceedings.
138 Executive Order 13340, Interpretation of the Geneva Conventions Common Article 3 as
Applied to a Program of Detention and Interrogation Operated by the Central Intelligence
Agency, 72 Fed. Reg. 40707 (July 20, 2007).
139 See Karen DeYoung, Court Told It Lacks Power in Detainee Cases, WASH. POST,
October 20, 2006, at A18 (reporting notice submitted by Justice Department to courts of
intention to move for dismissal of pending enemy combatant cases).

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a naval brig in South Carolina.140 Legislation introduced at the end of the 109th
Congress to amend the MCA did not reach the floor of either house.141
Possible Application to U.S. Citizens
Some observers raised concern that the MCA permits the President to detain
American citizens as enemy combatants without trial.142 The prohibition in the MCA
with respect to habeas corpus petitions applied only to those filed by or on behalf of
aliens detained by the United States as enemy combatants. However, the MCA can
be read by implication to permit the detention of U.S. citizens as enemy combatants,
although it does not permit their trial by military commission, which could affect
their entitlement to relief using habeas corpus procedures.

A plurality of the Supreme Court held in 2004, in Hamdi v. Rumsfeld,143 that the
President has the authority to detain U.S. citizens as enemy combatants pursuant to
the AUMF,144 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,”145 but left it to lower courts to flesh out a more precise definition. The U.S.
Court of Appeals for the Fourth Circuit found that the definition continued to apply
to a U.S. citizen who returned to the United States from Afghanistan and was arrested
at the airport.146 More recently, the Fourth Circuit appears to have expanded the
definition of “enemy combatant” to individuals arrested in the United States on
suspicion of planning to participate in terrorist acts without necessarily having
engaged in hostilities in Afghanistan. (See discussion of Al-Marri, supra).
In theory, the executive branch could detain a citizen as an enemy combatant
and argue that the definition of “unlawful enemy combatant” provided in the MCA,
which does not explicitly limit the definition to aliens and includes persons who
provide material support to terror groups engaged in hostilities against the United
States, should also apply to the detention authority already found by virtue of the
AUMF. Constitutional due process would apply, and the citizen 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
140 Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007), vacated sub nom. Al-Marri v.
Pucciarelli, __F.3d __ (2008)(per curiam).
141 See S. 4081 and H.R. 6381, 109th Cong.
142 See, e.g., Scott Shane and Adam Liptak, Detainee Bill Shifts Power to President, N.Y.
TIMES, September 30, 2006, at A1.
143 542 U.S. 507 (2004).
144 P.L. 107-40, 115 Stat. 224 (2001).
145 542 U.S. at 516.
146 Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005).

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contention that he is not an enemy combatant. In that sense, U.S. citizens could be
affected by the MCA even though it does not directly apply to U.S. citizens.

On the other hand, since the MCA definition for unlawful enemy combatant
applies on its face only for the purposes of the new chapter 47a of Title 10, U.S.
Code (providing for the trial by military commission of alien unlawful enemy
combatants), it may be argued that outside of that context, the term “enemy
combatant” should be understood in the ordinary sense, that is, to include only
persons who participate directly in hostilities against the United States. This
interpretation seems unlikely, given that it would also mean that this narrower
definition of “enemy combatant” was also meant to apply in the context of the
MCA’s habeas corpus provisions, such that some aliens who fall under the
jurisdiction of a military commission under the MCA would nevertheless have been
able to argue that the MCA did not affect their right to petition for habeas corpus or
pursue any other cause of action in U.S. court, a reading that does not seem
consistent with Congress’s probable intent. Further, it does not appear that Congress
meant to apply a different definition of “enemy combatant” to persons depending on
their citizenship. Congress could specify that U.S. citizens captured in the context
of the “Global War on Terror” be subject to trial in U.S. court for treason or a
violation of any other statute, or prescribe procedures for determining whether U.S.
citizens are subject to detention as enemy combatants, if constitutional, but it has not
done so.
DTA Challenges to Detention
At the same time as it was considering the Boumediene case, the D.C. Circuit
was reviewing several challenges brought pursuant to the DTA in which detainees
contested CSRT determinations that they are properly detained as “enemy
combatants.” The most advanced of these cases involved Haji Bismullah, who was
captured in Afghanistan in 2003, and Husaifa Parhat and six other detainees, all
ethnic Chinese Uighers captured in Pakistan in December 2001.
Bismullah v. Gates. At issue at this stage in the proceedings was a series of
motions filed by both parties seeking to establish procedures governing access to
classified information, attorneys’ access to clients, and other matters. The
petitioners sought to have the court adopt rules similar to what the district court had
ordered when the cases were before it on petitions of habeas corpus. The government
sought to establish rules restricting scope of discovery and attorney-client
communication to what it viewed as the proper scope of the court’s review, that is,
the CSRT proceedings.
The D.C. Circuit in July 2007 issued an order rejecting the government’s motion
to limit the scope of the court’s review to the official record of the CSRT hearings.147
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
147 Bismullah v. Gates, 501 F.3d 178 (Bismullah I), reh’g denied 503 F.3d 137(D.C. Cir.
2007).

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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.
The government asked the panel to reconsider the ruling based on its belief that
the order would require the government to undertake an overly burdensome search
of all relevant federal agencies in order to create a new record for each detainee that
would be entirely different from the record reviewed by the CSRT for that case. The
court denied the request for rehearing, explaining its view that its previous order
would not require a search for information that is not “reasonably available.” The
court also suggested that the government might instead convene new CSRTs to
reconfirm the detainees’ status, this time ensuring that the relevant documents are
retained for the purpose of review under the DTA. The government also objected to
the requirement that it turn over classified information to the petitioners’ counsel on
the basis of the risk to intelligence sources and methods as well as the burden of
conducting the necessary reviews to determine which information must be turned
over. The court rejected the argument, pointing out that DOD regulations declare
classified information to be not reasonably available where the originating agency
declines to authorize its use in the CSRT process. In light of this fact, the court
suggested, the burden of reviewing the information should not be as great as the
government had argued.
The government then asked for an en banc hearing, but the D.C. Circuit, evenly
divided, declined.148 The government then sought expedited review at the Supreme
Court, urging the Court to decide the cases concurrently with the Boumediene case,
148 Bismullah v. Gates, 514 F.3d 1291 (D.C. Cir. 2008).

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but the Court took no action on the request.149 Instead, it granted certiorari and
vacated the decision, remanding for reconsideration in light of its decision in
Boumediene.150
The D.C. Circuit’s determination of how to carry out its mandate under the
DTA was a matter of interest to the Supreme Court as it was considering
Boumediene, and may have had some bearing on the ultimate determination in that
case that the DTA procedures are not an adequate substitute for the writ of habeas
corpus. Accordingly, it may be worthwhile to review some of the shortcomings
described by the dissent, the only opinion of the panel that addressed the adequacy
of the DTA procedures as a substitute for habeas corpus. Judge Janice Rogers
Brown, concurring separately in Bismullah I, set forth a number of issues she felt call
into question the fairness of the CSRT proceedings. For example, she noted that the
detainee bears the burden of proving that he is not an “enemy combatant” — a term
she described as elastic in nature, even though the detainee may not be aware of the
information he is expected to rebut, all without the assistance of counsel.151 Further,
the record presented to the CSRT is limited by the Executive, and the detainee’s only
recourse for seeking further evidence is through the DTA review process. If the
detainee is successful in obtaining new evidence, his remedy appears to be a new
CSRT.152 Finally, she noted evidence that the CSRTs do not necessarily follow their
own regulations regarding the collection and presentation of evidence.153
Parhat v. Gates. In October 2007, while the government’s petition to the
Supreme Court for certiorari in the Bismullah case was pending, the government
produced to the counsel of Husaifa Parhat, one of the parties to the Bismullah case,
a record (including both classified and unclassified material) of what was actually
presented to Parhat’s CSRT. Parhat subsequently filed a separate motion to the D.C.
Circuit requesting review of the CSRT’s determination that he was an enemy
combatant. In June 2008, a three-judge panel for the D.C. Circuit ruled in the case
of Parhat v. Gates that petitioner had been improperly deemed an “enemy
combatant” by a CSRT, the first ruling of its kind by a federal court. Because the
court’s opinion contained classified information, only a redacted version has been
released.154
Parhat, an ethnic Chinese Uigher captured in Pakistan in December 2001, was
found to be an “enemy combatant” by the CSRT on account of his affiliation with a
Uighur independence group known as the East Turkistan Islamic Movement (ETIM),
which was purportedly “associated” with Al Qaeda and the Taliban and engaged in
hostilities against the United States and its coalition partners. The basis for Parhat’s
149 Gates v. Bismullah (U.S., filed February 14, 2008) (07-1054).
150 Gates v. Bismullah, — - S.Ct.——, 2008 WL 436938 (2008).
151 See Bismullah, 501 F.3d at 193 (Rogers, J. Concurring).
152 Id.
153 Id. (citing differences between written procedures and those described by Rear Admiral
James M. McGarrah in the Boumediene case).
154 Parhat v. Gates, — - F.3d——, 2008 WL 2576977, No. 06-1397 (June 20, 2008).

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alleged “affiliation” with the ETIM was that an ETIM leader ran a camp in
Afghanistan where Parhat had lived and received military training. For his part,
Parhat denied membership in the ETIM or engagement in hostilities against the
United States, and claimed he traveled to Afghanistan solely to join the resistance
against China, which was not alleged to have been a coalition partner of the United
States.
The Circuit Court agreed with Parhat that the record before the CSRT did not
support the finding that he was an “enemy combatant,” as that term had been defined
by the DOD, and accordingly the CSRT’s determination was not supported by a
“preponderance of the evidence” and “consistent with the standards and procedures
specified by the Secretary of Defense for Combatant Status Review Tribunals,” as
required by the DTA.155 The DOD defined an “enemy combatant” 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. This includes any person who
has committed a belligerent act or has directly supported hostilities in
aid of enemy armed forces.156
Both parties agreed that for a detainee who is not a member of the Taliban or Al
Qaeda to be deemed an enemy combatant under this definition, the government must
demonstrate by a preponderance of the evidence that (1) the detainee was part of or
supporting “forces”; (2) those forces are associated with Al Qaeda or the Taliban; and
(3) the forces are engaged in hostilities against the United States or its coalition
partners.157
The Circuit Court found that the evidence presented by the government to
support the second and third elements was insufficient to support the CSRT’s
determination that Parhat was an enemy combatant. Most significantly, the court
found that the principal evidence presented by the government regarding these
elements — four government intelligence documents describing ETIM activities and
the group’s relationship with Al Qaeda and the Taliban — did not “provide any of
the underlying reporting upon which the documents’ bottom-line assertions are
founded, nor any assessment of the reliability of that reporting.”158 As a result, the
Circuit Court found that neither the CSRT nor the reviewing court itself were capable
of assessing the reliability of the assertions made by the documents. Accordingly
“those bare assertions cannot sustain the determination that Parhat is an enemy
155 Although Parhat argued that the DOD’s regulatory definition of “enemy combatant”
exceeded the scope authorized by the 2001 AUMF, the Circuit Court declined to reach this
issue, finding that the government provided insufficient evidence to demonstrate that Parhat
met the DOD’s own regulatory definition.
156 Id., 2008 WL 2576977 at *7, quoting Dept. of Def. Order Establishing Combatant Status
Review Tribunal (July 7, 2004), at 1.
157 Id.
158 Id., 2008 WL 2576977 at *11.

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combatant,”159 and the CSRT’s designation was therefore improper. The Circuit
Court stressed that it was not suggesting that hearsay evidence could never reliably
be used to determine whether a person was an enemy combatant, or that the
government must always submit the basis for its factual assertions to enable an
assessment of its claims. However, evidence “must be presented in a form, or with
sufficient additional information, that permits the [CSRT] and court to assess its
reliability.”160
Having found that the evidence considered by the CSRT was insufficient to
support the designation of Parhat as an enemy combatant, the Circuit Court next
turned to the question of remedy. Although Parhat urged the court to order his
release or transfer to a country other than China, the court declined to grant such
relief, postulating that the government might wish to hold another CSRT in which
it could present additional evidence to support Parhat’s designation as an enemy
combatant. While acknowledging that the DTA did not expressly grant the court
release authority over detainees, the court stated that there was nonetheless “a strong
argument...[that release authority] is implicit in our authority to determine whether
the government has sustained its burden of proving that a detainee is an enemy
combatant,”161 and indicated that it would not “countenance ‘endless do-overs’” in
the CSRT process.
The Circuit Court also noted that following the Supreme Court’s ruling in
Boumediene, Parhat could pursue immediate habeas relief in federal district court,
where he would “be able to make use of the determinations we have made today
regarding the decision of his CSRT, and...raise issues that we did not reach” before
a court which unquestionably would have the power to order his release.162 Parhat
has also filed a habeas petition with the U.S. District Court for D.C., and requested
that the court parole him into the United States pending the court’s ruling.163 Parhat’s
case, along with his motion for parole into the U.S., is currently pending.

Boumediene v. Bush164
The petitioners in Boumediene are aliens detained at Guantanamo who sought
habeas review of their continued detention. Rather than pursuing an appeal of their
designation as enemy combatants by CSRTs using the DTA appeals process, the
petitioners sought to have the district court decisions denying habeas review reversed
159 Id.
160 Id., 2008 WL 2576977 at *14.
161 Parhat, 2008 WL 2576977 at *14.
162 Id., 2008 WL 2576977 at *15.
163 Husaifa Parhat’s Motion for Immediate Release on Parole into the Continental United
States Pending Final Judgment on His Habeas Petition, In re: Guantanamo Bay Litigation,
No. 05-1509 (July 23, 2008).
164 For further discussion, see CRS Report RL34536, Boumediene v. Bush: Guantanamo
Detainees’ Right to Habeas Corpus, by Michael John Garcia.

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on the basis that the MCA’s “court-stripping”165 provision was unconstitutional.166
On appeal, the D.C. Circuit affirmed, holding that the MCA stripped it and all other
federal courts of jurisdiction to consider petitioners’ habeas applications. Relying
upon its earlier opinion in Al Odah v. United States167 and the 1950 Supreme Court
case Johnson v. Eisentrager,168 in which the Supreme Court found that the
constitutional writ of habeas was not available to enemy aliens imprisoned for war
crimes in post-WWII Germany, the D.C. Circuit held that the MCA’s elimination of
habeas jurisdiction did not operate as an unconstitutional suspension of the writ,
because aliens held by the United States in foreign territory do not have a
constitutional right to habeas.169 Consequently, the court did not examine whether
the DTA provides an adequate substitution for habeas review.
The Supreme Court initially denied the petitioners’ request for review,170 with
three Justices dissenting to the denial and two Justices explaining the basis for their
support.171 In June 2007, however, the Court reversed its denial and granted
certiorari to consider the consolidated cases of Boumediene and Al Odah. In a 5-4
opinion authored by Justice Kennedy, the Court reversed the D.C. Circuit and held
165 The practice of divesting courts of jurisdiction over particular issues is sometimes
referred to as “court-stripping.”
166 In re Guantanamo Cases, 355 F. Supp. 2d 443 (D.D.C. 2005) and Khalid v. Bush, 355
F. Supp. 2d 311 (D.D.C. 2005), consolidated, vacated and dismissed sub nom. Boumediene
v. Bush, 476 F.3d 981 (D.C. Cir. 2007).
167 Al Odah v. United States, 321 F.3d 1134 (D.C. Cir 2003), rev’d sub nom Rasul v. Bush,
542 U.S. 466 (2004).
168 339 U.S. 763 (1950).
169 476 F.3d 981 (D.C. Cir. 2007). Judge Randolph, joined by Judge Sentelle, found that the
measure does not constitute a suspension of the Writ within the meaning of the Constitution
because the majority was “aware of no case prior to 1789 going the detainees’ way,” and
were thus convinced that “the writ in 1789 would not have been available to aliens held at
an overseas military base leased from a foreign government.” Judge Rogers, in dissent,
would have given greater deference to the Supreme Court’s Rasul opinion, in which it drew
a distinction between the situation faced by the Guantanamo detainees and the post-WWII
convicts, 542 U.S. 466, 475 (2004), and in which it found the naval base to be within the
historical scope of the Writ. Boumediene, 476 F.3d at 1002 (Rogers, J., dissenting))(citing
Sierra Club v. EPA, 322 F.3d 718, 724 (D.C. Cir. 2003)).
170 Boumediene v. Bush, 127 S.Ct. 1478 (2007).
171 Justice Stevens, joined by Justice Kennedy, wrote a statement explaining their view that,
“despite the obvious importance of the issues raised,” the petitioners should first exhaust
remedies available under the DTA unless the petitoners can show that the government is
causing delay or some other ongoing injury that would make those remedies inadequate. Id.
at 1478. Justice Breyer, joined by Justices Souter and Ginsburg, would have granted
certiorari to provide immediate attention to the issues. The dissenters viewed it as unlikely
that further treatment by the lower courts might elucidate the issues, given that the MCA
limits jurisdiction to the Court of Appeals for the D.C. Circuit, which had already indicated
that Guantanamo detainees have no constitutional rights. Justices Breyer and Souter would
have granted expedited consideration.

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that petitioners had a constitutional right to habeas that was withdrawn by the MCA
in violation of the Constitution’s Suspension Clause.172
Constitutional Right to Habeas. The petitioners in Boumediene argued
that they possess a constitutional right to habeas, and that the MCA deprived them
of this right in contravention of the Suspension Clause, which prohibits the
suspension of the writ of habeas except “when in Cases of Rebellion or Invasion the
public Safety may require it.” The MCA did not expressly purport to be a formal
suspension of the writ of habeas, and the government did not make such a claim to
the Court. Instead, the government argued that aliens designated as enemy
combatants and detained outside the de jure territory of the United States have no
constitutional rights, including the constitutional privilege to habeas, and that
therefore stripping the courts of jurisdiction to hear petitioners’ habeas claims did not
violate the Suspension Clause.
The Court began its analysis by surveying the history and origins of the writ of
habeas corpus, emphasizing the importance placed on the writ for the Framers, while
also characterizing its prior jurisprudence as having been “careful not to foreclose the
possibility that the protections of the Suspension Clause have expanded along with
post-1789 developments that define the present scope of the writ.”173 The Court
characterized the Suspension Clause as not only a “vital instrument” for protecting
individual liberty, but also a means to ensure that the judiciary branch would have,
except in cases of formal suspension, “a time-tested device, the writ, to maintain the
delicate balance of governance” between the branches and prevent “cyclical abuses”
of the writ by the executive and legislative branches.174 The Court stated that the
separation-of-powers doctrine and the history shaping the design of the Suspension
Clause informed its interpretation of the reach and purpose of the Clause and the
constitutional writ of habeas.
The Court found the historical record to be inconclusive for resolving whether
the Framers would have understood the constitutional writ of habeas as extending
to suspected enemy aliens held in foreign territory over which the United States
exercised plenary, but not de jure control. Nonetheless, the Court interpreted the
Suspension Clause as having full effect at Guantanamo. While the Court did not
question the government’s position that Cuba maintains legal sovereignty over
Guantanamo under the terms of the 1903 lease giving the U.S. plenary control over
the territory, it disagreed with the government’s position that “at least when applied
to non-citizens, the Constitution necessarily stops where de jure sovereignty ends.”175
Instead, the Court characterized its prior jurisprudence as recognizing that the
Constitution’s extraterritorial application turns on “objective factors and practical
172 U.S. CONST. Art. 1, § 9, cl. 2.
173 Boumediene at 2248 (citing INS v. St. Cyr, 533 U. S. 289, 300 — 301(2001)).
174 Id. at 2247.
175 Id. at 2253.

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concerns.”176 Here, the Court emphasized the functional approach taken in the
Insular Cases, where it had assessed the availability of constitutional rights in
incorporated and unincorporated territories under the control of United States.177
Although the government argued that the Court’s subsequent decision in Eisentrager
stood for the proposition that the constitutional writ of habeas does not extend to
enemy aliens captured and detained abroad, the Court found this reading to be overly
constrained. According to the Court, interpreting the Eisentrager ruling in this
formalistic manner would be inconsistent with the functional approach taken by the
Court in other cases concerning the Constitution’s extraterritorial application,178 and
would disregard the practical considerations that informed the Eisentrager Court’s
decision that the petitioners were precluded from seeking habeas.
Based on the language found in the Eisentrager decision and other cases
concerning the extraterritorial application of the Constitution, the Court deemed at
least three factors to be relevant in assessing the extraterritorial scope of the
Suspension Clause: (1) the citizenship and status of the detainee and the adequacy
of the status determination process; (2) the nature of the site where the person is
seized and detained; and (3) practical obstacles inherent in resolving the prisoner’s
entitlement to the writ.
Applying this framework, the Court characterized petitioners’ circumstances in
the instant case as being significantly different from those of the detainees at issue
in Eisentrager. Among other things, the Court noted that unlike the detainees in
Eisentrager, the petitioners denied that they were enemy combatants, and the
government’s control of the post-WWII, occupied German territory in which the
Eisentrager detainees were held was not nearly as significant nor secure as its control
over the territory where the petitioners are located. The Court also found that the
procedural protections afforded to Guantanamo detainees in CSRT hearings are “far
more limited [than those afforded to the Eisentrager detainees tried by military
commission], and, we conclude, fall well short of the procedures and adversarial
mechanisms that would eliminate the need for habeas corpus review.”179
While acknowledging that it had never before held that noncitizens detained in
another country’s territory have any rights under the U.S. Constitution, the Court
176 Id. at 2258.
177 See De Lima v. Bidwell, 182 U. S. 1 (1901); Dooley v. United States, 182 U. S. 222
(1901); Armstrong v. United States, 182 U. S. 243 (1901); Downes v. Bidwell, 182 U. S.
244; Hawaii v. Mankichi, 190 U. S. 197 (1903); Dorr v. United States, 195 U. S. 138 (1904).
178 Boumediene, at 2255-56, 2258 (discussing plurality opinion in Reid v. Covert, 354 U. S.1
(1957)). In his concurring opinion in Reid, Justice Harlan argued that whether a
constitutional provision has extraterritorial effect depends upon the “particular
circumstances, the practical necessities, and the possible alternatives which Congress had
before it” and, in particular, whether judicial enforcement of the provision would be
“impracticable and anomalous.” Reid, 354 U.S. at 74 — 75 (Harlan, J., concurring in result).
179 Id. at 2260.

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concluded that the case before it “lack[ed] any precise historical parallel.”180 In
particular, the Court noted that the Guantanamo detainees have been held for the
duration of a conflict that is already one of the longest in U.S. history, in territory
that, while not technically part of the United States, is subject to complete U.S.
control. Based on these factors, the Court concluded that the Suspension Clause has
full effect at Guantanamo.
Adequacy of Habeas Corpus Substitute. Having decided that petitioners
possessed a constitutional privilege to habeas corpus, the Court next assessed
whether the court-stripping measure of MCA § 7 was impermissible under the
Suspension Clause. Because the MCA did not purport to be a formal suspension of
the writ, the question before the Court was whether Congress had provided an
adequate substitute for habeas corpus. The government argued that the MCA
complied with the Suspension Clause because it applied the DTA’s review process
to petitioners, which the government claimed was a constitutionally adequate habeas
substitute.
Though the Court declined to “offer a comprehensive summary of the requisites
for an adequate substitute for habeas corpus,” it nonetheless deemed the habeas
privilege, at minimum, as entitling a prisoner “to a meaningful opportunity to
demonstrate that he is being held pursuant to ‘the erroneous application or
interpretation’ of relevant law,” and empowering a court “to order the conditional
release of an individual unlawfully detained,” though release need not be the
exclusive remedy or appropriate in every instance where the writ is granted.181
Additionally, the necessary scope of habeas review may be broader, depending upon
“the rigor of any earlier proceedings.”182
The Court noted that petitioners identified a myriad of alleged deficiencies in
the CSRT process which limited a detainee’s ability to present evidence rebutting the
government’s claim that he is an enemy combatant. Among other things, cited
deficiencies include constraints upon the detainee’s ability to find and present
evidence at the CSRT stage to challenge the government’s case; the failure to provide
a detainee with assistance of counsel; limiting the detainee’s access to government
records other than those that are unclassified, potentially resulting in a detainee being
unaware of critical allegations relied upon by the government to order his detention;
and the fact that the detainee’s ability to confront witnesses may be “more theoretical
than real,”183 given the minimal limitations placed upon the admission of hearsay
evidence.
While the Court did not determine whether the CSRTs, as presently constituted,
satisfy due process standards, it agreed with petitioners that there was “considerable
180 Id. at 2262.
181 Boumediene, at 2266-67.
182 Id. at 2268.
183 Id. at 2269.

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risk of error in the tribunal’s findings of fact.”184 “[G]iven that the consequence of
error may be detention for the duration of hostilities that may last a generation or
more, this is a risk too serious to ignore.”185 The Court held that for either the writ
of habeas or an adequate substitute to function as an effective remedy for petitioners,
a court conducting a collateral proceeding must have the ability to (1) correct errors
in the CSRT process; (2) assess the sufficiency of the evidence against the detainee;
and (3) admit and consider relevant exculpatory evidence that was not introduced in
the prior proceeding.
The Court held that the DTA review process is a facially inadequate substitute
for habeas review. It listed a number of potential constitutional infirmities in the
review process, including the absence of provisions (1) empowering the D.C. Circuit
to order release from detention; (2) permitting petitioners to challenge the President’s
authority to detain them indefinitely; (3) enabling the appellate court to review or
correct the CSRT’s findings of fact; and (4) permitting the detainee to present
exculpatory evidence discovered after the conclusion of CSRT proceedings. As a
result, the Court deemed MCA § 7’s application of the DTA review process to
petitioners as failing to provide an adequate substitute for habeas, therefore effecting
an unconstitutional suspension of the writ.
In light of this conclusion, the Court held that petitioners could immediately
pursue habeas review in federal district court, without first obtaining review of their
CSRT designations from the D.C. Circuit as would otherwise be required under the
DTA review process. While prior jurisprudence recognized that prisoners are
generally required to exhaust alternative remedies before seeking federal habeas
relief, the Court found that petitioners in the instant case were entitled to a prompt
habeas hearing, given the length of their detention. The Court stressed, however, that
except in cases of undue delay, federal courts should generally refrain from
considering habeas petitions of detainees being held as enemy combatants until after
the CSRT had an opportunity to review their status. Acknowledging that the
government possesses a “legitimate interest in protecting sources and methods of
intelligence gathering,” the Court announced that it expected courts reviewing
Guantanamo detainees habeas claims to use “discretion to accommodate this interest
to the greatest extent possible,” so as to avoid “widespread dissemination of
classified information.”186
Implications of Boumediene. As a result of the Boumediene decision,
detainees currently held at Guantanamo may petition a federal district court for
habeas review of status determinations made by a CSRT. However, the full
consequences of the Boumediene decision are likely to be significantly broader.
While the petitioners in Boumediene sought habeas review of their designation as
enemy combatants, the Court’s ruling that the constitutional writ of habeas extends
to Guantanamo suggests that detainees may also seek judicial review of claims
184 Id. at 2270.
185 Id.
186 Id. at 2275.

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concerning unlawful conditions of treatment or confinement or to protest a planned
transfer to the custody of another country.187
The conduct of trials before military commissions at Guantanamo may also be
affected by Boumediene, as enemy combatants may now potentially raise
constitutional arguments against their trial and conviction. Aliens convicted of war
crimes before military commissions may also potentially seek habeas review of their
designation as an enemy combatant by the CSRT, a designation that served as a legal
requisite for their subsequent prosecution before a military commission.
Although the Boumediene Court held that DTA review procedures were an
inadequate substitute for habeas, it made “no judgment as to whether the CSRTs, as
currently constituted, satisfy due process standards,” and emphasized that “both the
DTA and the CSRT process remain intact.”188 Whether these procedures violate due
process standards, facially or as applied in a given case, and whether a particular
detainee is being unlawfully held, are issues that will be addressed by the District
Court when reviewing the habeas claims of Guantanamo detainees.
Constitutional Considerations and Options
for Congress
The Supreme Court decision in Boumediene holding that the DTA violates the
Constitution’s Suspension Clause (article I, § 9, cl. 2) leaves open a number of
constitutional questions regarding the scope of the Writ of Habeas Corpus and what
options are open to Congress to make rules for the detention of suspected terrorists.
The following sections provide a brief background of the writ of habeas corpus in
the United States, outline some proposals for responding to the Boumediene holding,
and discuss relevant constitutional considerations.
The Writ of Habeas Corpus (ad subjiciendum), also known as the Great Writ,
has its origin in Fourteenth Century England.189 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.190 The habeas statute provides
jurisdiction to hear petitions by persons claiming that they are held “in custody in
187 See Boumediene, at 2274 (“In view of our holding we need not discuss the reach of the
writ
with respect to claims of unlawful conditions of treatment or confinement.”).
188 Id. at 2275.
189 For a general background and description of related writs, see 39 AM. JUR. 2d. Habeas
Corpus § 1 (1999).
190 See generally S. DOC. NO. 108-17 at 848 et seq.

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violation of the Constitution or laws or treaties of the United States.”191 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.192
Minor irregularities in trial procedures that do not amount to violations of
fundamental constitutional rights are generally to be addressed on direct appeal.193
Article I, § 9, cl. 2, of the Constitution provides: “The Privilege of the Writ of
Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or
Invasion the public Safety may require it.” Given the emphasis the Rasul Court had
placed on the distinction between the statutory and constitutional entitlement to
habeas corpus, it might have seemed reasonable to suppose that Congress retained
the power to revoke by statute what it had earlier granted without offending either the
Court or the Constitution, without regard to establishing a public safety justification.
However, as the Boumediene case demonstrates, the special status accorded the Writ
by the Suspension Clause complicates matters.
The relevance of the distinction between a “statutory” and a “constitutional”
privilege of habeas corpus is not entirely clear. The federal courts’ power to review
petitions under habeas corpus has historically relied on statute,194 but it has been
explained that the Constitution obligates Congress to provide “efficient means by
which [the Writ] should receive life and activity.”195 While the Court has stated that
“at the absolute minimum, the Suspension Clause protects the writ ‘as it existed in
1789,’”196 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.”197 The Boumediene
Court declined to adopt a date of reference by which the constitutional scope of the
writ is to be judged.198 Accordingly, it remains unclear whether statutory
enhancements of habeas review can ever be rolled back without implicating the
Suspension Clause.199 The constitutionally mandated scope of the writ may turn on
191 Rasul v. Bush, 542 U.S. 466 (2004).
192 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.”).
193 39 AM. JUR. 2d. Habeas Corpus § 27 (1999).
194 Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807).
195 Id. at 94.
196 Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289, 301 (U.S. 2001).
197 Felker v. Tupin, 518 U.S. 663 (1996)(citing Swain v. Pressley, 430 U.S. 372 (1977)).
198 See Boumediene at 2248 (“ The Court has been careful not to foreclose the possibility
that the protections of the Suspension Clause have expanded along with post-1789
developments that define the present scope of the writ.”).
199 Cf. INS v. St. Cyr, 533 U.S. 289, 340 n.5 (2001) (Scalia, J., dissenting)(“If . . . the writ
could not be suspended within the meaning of the Suspension Clause until Congress
affirmatively provided for habeas by statute, then surely Congress may subsequently alter
what it had initially provided for, lest the Clause become a one-way ratchet.”).

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the same kinds of “objective factors and practical considerations” that the Court
stated would determine the territorial scope of the writ.
Under Boumediene, it appears that Congress’s ability to revoke altogether the
courts’ jurisdiction over habeas petitions by certain classes of persons is constrained
by the Constitution, but Congress has the power to impose some procedural
regulations that may limit how courts consider such cases.200 Congress also retains
the option of withdrawing habeas jurisdiction if it provides an effective and adequate
alternative means of pursuing relief.201 The Court’s opinion in Boumediene did not
fully delineate the lower bounds of what the Court might consider as necessary either
to preserve the constitutional scope of the writ or to provide an adequate substitute,
but indicated that the prisoners are entitled to “a meaningful opportunity to
demonstrate that [they are] being held pursuant to the erroneous application or
interpretation of relevant law.”202 A more direct option to affect the outcome of
habeas cases brought by detainees may involve enacting a clear statutory definition
of who may be detained and the purpose of the detention, along with an appropriate
procedure designed to distinguish those who meet the definition from those who do
not. Such an approach could potentially increase certainty with respect to courts’
decisions regarding whether the detention of particular alleged enemy combatants
comports with statutes and treaties, although constitutionally based claims may
remain less predictable.
Congress could formally suspend the writ with respect to the detainees, although
it is unclear whether Congress’s views regarding the requirements of public safety are
justiciable.203 If they are, then a reviewing court’s assessment of the constitutionality
of habeas-suspending legislation would likely turn on whether Al Qaeda’s terrorist
attacks upon the United States qualify as a “rebellion or invasion,” and whether the
court finds that “the public safety” requires the suspension of the writ.
Congress might be able to impose some limitations upon judicial review of
CSRT determinations if it strengthened the procedural protections afforded to
detainees in CSRT status hearings. Legislation addressing some or all of the potential
procedural inadequacies in the CSRT process identified in Boumediene might permit
judicial review of CSRT determinations to be further streamlined.
Attorney General Michael Mukasey has recommended that Congress enact new
legislation to eliminate the DTA appeals process and make habeas corpus the sole
200 Cf. Felker (Holding that restrictions on successive petitions for habeas corpus by
prisoners convicted in state courts did not suspend the writ, but merely applied a modified
res judicata rule to control abuse of the writ); Boumediene at 2276-77 (explaining that some
reasonable regulations on habeas cases to relieve governmental burden or preserve security
will be permissible).
201 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).
202 Boumediene at 2266.
203 The Boumediene Court did not address the matter because the MCA did not purport to
act as a formal suspension of the writ. Boumediene at 2262.

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avenue for detainees to challenge their detention in civilian court, and also to
eliminate challenges to conditions of confinement or transfers out of US custody. In
a speech before the American Enterprise Institute on July 21, 2008,204 General
Mukasey discussed this suggestion along with five other points he feels Congress
should address:
! Courts should be prohibited from ordering that an alien captured and
detained abroad be brought to the United States for court proceedings,
or be admitted and released into the United States.
! Procedures should be put in place to ensure that intelligence
information, including sources and methods, would be protected from
disclosure to terrorist suspects.
! Detainees awaiting trial by military commission should be prevented
from bringing habeas petitions until the completion of their trials.
! Congress should reaffirm the authority to detain as enemy combatants
persons who have “engaged in hostilities or purposefully supported
al Qaeda, the Taliban, and associated organizations.”
! Congress should establish sensible procedures for habeas challenges
by assigning one district court exclusive jurisdiction over the cases,
with one judge deciding common legal issues; by adopting “rules that
strike a reasonable balance between the detainees’ rights to a fair
hearing ... and our national security needs ...” that would “not
provide greater protection than we would provide to American
citizens held as enemy combatants in this conflict”; and ensuring that
court proceedings “are not permitted to interfere with the mission of
our armed forces.”
Other proposals that have been floated include the creation of a new national
security court to authorize preventive detention of terror suspects205 or the use of
civilian or military courts to prosecute all detainees who cannot be released to their
home country or another country willing to take them. Among the issues associated
with prosecuting all of the detainees in civilian court is that the detainees may not
have committed any crimes cognizable in federal court. Persons accused of engaging
in terrorist acts (including attempts, conspiracies and the like) against the United
States could likely be prosecuted,206 but jurisdiction over offenses involving the
204 The Attorney General’s prepared statement is available at [http://www.scotusblog.
com/wp/ mukasey-curb-courts-powers-on-detainees/].
205 See Improving Detainee Policy: Handling Terrorism Detainees within the American
Justice System, Hearing before the Senate Judiciary Committee, June 4, 2008. For a review
and criticism of some proposals, see the Constitution Project, A Critique of “National
Security Courts,” available at [http://www.constitutionproject.org/pdf/Critique_of_the_
National_Security_Courts.pdf].
206 See, e.g., 18 U.S.C. § 2332 (prescribing penalties for homicides of U.S. nationals abroad
(continued...)

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provision of material support to a terrorist organization abroad is somewhat more
limited, and for acts occurring prior to 2004, included only persons subject to the
jurisdiction of the United States.207
Congress could also take no action and allow the courts to address the issues in
the course of deciding the habeas petitions already docketed.
Scope of Challenges
Whether Congress enacts legislation to guide the courts or permits courts to
resolve the habeas cases as they now stand, courts will be faced with determining the
scope of the writ as it applies to detainees in Guantanamo and perhaps elsewhere.
Although the Boumediene Court held that DTA review procedures were an inadequate
substitute for habeas, it expressly declined to assess “the content of the law that
governs” the detention of aliens at Guantanamo.208 Nonetheless, the Supreme Court
identified a number of potential deficiencies in the status review process that
necessitated habeas review of CSRT determinations, including the detainee’s lack of
counsel during the hearings; the presumption of validity accorded to the government’s
evidence; procedural and practical limitations upon the detainee’s ability to present
evidence rebutting the government’s charges against him and to confront witnesses;
potential limitations on the detainee’s ability to introduce exculpatory evidence; and
limitations on the detainee’s ability to learn about the nature of the government’s case
against him to the extent that it is based upon classified evidence.209 Whether these
procedures violate due process standards, facially or as applied in a given case, and
whether a particular detainee is being unlawfully held, are issues that will be
addressed by the District Court when reviewing the habeas claims of Guantanamo
detainees.
Boumediene considered challenges to the legality of detention, the issue at the
heart of most of the habeas challenges brought by Guantanamo detainees to date.
However, there are also some cases challenging the conditions under which a detainee
is being held. These two categories of challenges may involve different procedural
routes and the application of different constitutional rights. The extent to which
Congress may limit the scope of challenges Guantanamo detainees may bring may
206 (...continued)
and other violence directed at the United States, so long as the act is “intended to coerce,
intimidate, or retaliate against a government or a civilian population”); 18 U.S.C. § 2232b
(acts of terrorism transcending national boundaries).
207 See 18 U.S.C. § 2339B (provision of material support to designated terrorist organization
prior to amendment by P.L. 108 — 458, § 6603(d), December 17, 2004); see also 18 U.S.C.
§ 2339 (proscribing harboring or concealing terrorists, but only after October 26, 2001
enactment of P.L. 107 — 56, title VIII, § 803(a)). The Ex Post Facto Clause prevents
prosecution for charges that would not have been applicable when the offense occurred, U.S.
CONST. art. 1, § 9, cl. 3.
208 Boumediene, at 67.
209 See Boumediene, at 37-38, 54-56.

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turn on the unresolved question of which constitutional rights apply to aliens detained
in territory abroad.
The Supreme Court has not directly addressed whether there must exist a judicial
forum to vindicate all constitutional rights. Justice Scalia has pointed out that there are
particular cases, such as political questions cases, where all constitutional review is
in effect precluded.210 Other commentators point to sovereign immunity and the
ability of the government to limit the remedies available to plaintiffs.211 However, the
Court has, in cases involving particular rights, generally found a requirement that
effective judicial remedies must be available.212 Although the extent of constitutional
rights enjoyed by aliens outside the territory of the United States is subject to
continuing debate, the right of aliens within the United States to liberty except when
restricted in accordance with due process of law seems well established.
The Fact and Length of Detention. The DTA provides a means for
challenging the validity of decisions by a CSRT that a detainee is an enemy
combatant. The D.C. Circuit Court of Appeals has not fully clarified the scope of
evidence it may review in reaching such a determination. The government has argued
that administrative law (applicable to reviews of agency determinations) supplies the
appropriate model for reviewing CSRT determinations, so that only the record of the
CSRT proceedings is subject to review, and that extrinsic evidence not already part
of the record should not be subject to discovery.213 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.214
The D.C. Circuit’s jurisdiction under the DTA also includes constitutional review
of whether the standards and procedures utilized in the military proceedings below
were consistent with the Constitution and laws of the United States. This seems to
bring the scope of DTA proceedings closer to that which would be available in habeas
review. However, habeas challenges may also permit challenges to detention not
based solely on the adequacy of CSRT procedures. First, there is no statutory
requirement that all detainees receive a CSRT determination in order to be detained,
nor that detainees receive any kind of a hearing within any certain period of time after
their capture. This might have left some detainees without effective means to pursue
a DTA challenge. Moreover, it appears that some detainees who were determined by
CSRTs to be properly classified as enemy combatants have been released from
Guantanamo without a new determination, which may call into question the
importance of the CSRT procedure as the primary means for obtaining release and
therefore, the sole focus of a collateral challenge. Detainees may also be transferred
or released based on the results of periodic reviews conducted by Administrative
210 486 U.S. at 612-13 (Scalia, J., dissenting).
211 Bartlett v. Bowen, 816 F.2d 695, 719-720 (1987)(Bork, J., dissenting).
212 See e.g., First English Evangelical Lutheran Church of Glendale v. Los Angeles County,
482 U.S. 304 (1987)(holding that the Constitution mandates effective remedies for takings).
213 See Gov’t Br. Address. Pend. Prelim. Mots. at 49-51, Bismullah v. Gates, No. 06-1197
(D.C. Cir.).
214 Bismullah v. Gates, No. 06-1197 (D.C. Cir. July 20, 2007)(order on procedural motions).

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Review Boards (ARBs)215 to determine whether the detainee is no longer a threat or
that it is in the interest of the United States and its allies to release the prisoner. There
is no opportunity under the DTA to appeal the result of an ARB finding. While new
evidence uncovered by this process may result in the convening of a new CSRT to
determine continued enemy combatant status,216 the DTA does not provide an avenue
to appeal a decision not to convene a new CSRT.217 The Supreme Court’s ruling that
the constitutional writ of habeas extends to Guantanamo suggests that detainees may
seek habeas review in such cases.
Conditions of Detention. Although it appears less common for challenges to
prison conditions to be entertained under habeas review, such cases have been heard
by federal courts on habeas petitions.218 Prisoners in federal prison may also ask a
district court to address such complaints using their general jurisdiction to consider
claims that arise under the Constitution,219 by means of a writ of mandamus.220 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
215 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].
216 CSRT Implementing Directive, supra note 28, at encl. 10 (implementing Detainee
Treatment Act provisions).
217 Boumediene at 2273-74 (stating that the ability to request a new CSRT to consider new
evidence is an “insufficient replacement for the factual review these detainees are entitled
to receive through habeas corpus”).
218 “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).
219 28 U.S.C. § 1331. See Caldwell v. Miller, 790 F.2d 589 (7th Cir. 1986).
220 Russell Donaldson, Mandamus, under 28 U.S.C.A. §1361, To Obtain Change in Prison
Condition or Release of Federal Prisoner, 114 A.L.R. Fed. 225 (2005). Relief in mandamus
is generally available where: (1) the plaintiff can show a clear legal right to the performance
of the requested action; (2) the duty of the official in question is clearly defined and
nondiscretionary; (3) there is no other adequate remedy available to the plaintiff; (4) there
are other separate jurisdictional grounds for the action. Id. at 1(a). A writ of mandamus may
issue only where “the duty to be performed is ministerial and the obligation to act
peremptory, and clearly defined. The law must not only authorize the demanded action, but
require it; the duty must be clear and undisputable.” Ali v. Ashcroft, 350 F. Supp. 2d 28, 65
(D.D.C. 2004), quoting Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476, 1479 (D.C. Cir.
1995).

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brought based on the First Amendment,221 Sixth Amendment,222 Eighth Amendment223
and various other grounds.224
The Boumediene Court declined to discuss whether challenges to conditions of
detention are within the constitutional scope of the writ as it applies to Guantanamo
detainees.225 A variety of challenges has been raised by detainees in Guantanamo
regarding conditions of their detention, including such issues as whether prisoners can
be held in solitary confinement226 when they can be transferred,227 or whether they can
have contact with relatives.228 Although some of these were brought as habeas corpus
cases,229 Guantanamo detainees have also sought relief from the courts using the All
Writs Act,230 principally to prevent their transfer to other countries without notice,231
but for other reasons too.232 Use of the All Writs Act by a court is an extraordinary
remedy, generally not invoked if there is an alternative remedy available.233
Available Remedy. Under Title 28, U.S. code, a court conducting habeas
review must “award the writ or issue an order directing the respondent to show cause
why the writ should not be granted, unless it appears from the application that the
221 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).
222 Stover v. Carlson, 413 F. Supp. 718 (D. Conn. 1976) (ending federal prison practice of
opening privileged communications outside of prisoner’s presence).
223 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).
224 See generally Donaldson, supra note 220.
225 See Boumediene, at 2274 (“In view of our holding we need not discuss the reach of the
writ with respect to claims of unlawful conditions of treatment or confinement.”).
226 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.
227 Al-Anazi v. Bush, 370 F. Supp. 2d 188 (D.D.C. 2005).
228 Josh White, Lawyers Seek Improved Conditions for Suicidal Detainee, WASH. POST,
November 5, 2005, at A8.
229 See, e.g., In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 480-81 (D.D.C.
2005)(rejecting claims on other grounds).
230 All Writs Act, 28 U.S.C. § 1651.
231 Belbach v. Bush, 520 F.3d 452, 456 (D.C. Cir. 2008) (holding the MCA leaves intact
the presumptive jurisdiction of federal courts to inquire into the constitutionality of a
jurisdiction-stripping statute).
232 See El-Banna v. Bush, 2005 U.S. Dist. LEXIS 16880 (2005) (seeking preservation of
records relating to treatment of detainees).
233 Al-Anazi v. Bush, 370 F. Supp. 2d 188, 196 (D.D.C. 2005).

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detainee is not entitled to it.”234 The court can order either party to expand the record
by submitting additional information bearing on the petition.235 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,”236 or in criminal cases, to vacate a sentence, grant
a new trial, or order that a prisoner be released.237
By contrast, the DTA review procedures do not address the remedies available
to detainees who prevail in a challenge. Detainees who succeed in persuading a CSRT
that they are not enemy combatants do not have a right to release or even a right
initially to be informed of the CSRT’s decision. If the CSRT Director approves a
finding that a detainee is no longer an enemy combatant, the detainee may be held for
as long as it takes the government to arrange for his transfer to his home country or
another country willing to provide asylum, during which time he need not be told of
the CSRT’s conclusion.238 According to one report of unclassified CSRT records, in
the event the CSRT Director disapproves of the finding, new CSRTs may be
convened, apparently without notifying or permitting the participation of the detainee,
although the government might present new evidence to the new panel.239
The Supreme Court viewed the lack of an express power permitting the courts
to order the release of a detainee as a factor relevant to the DTA’s inadequacy as a
substitute proceeding.240 In the context of CSRT determinations, the government
suggested to the Court that remand for new CSRT proceedings would be the
appropriate remedy for a determination that an error of law was made or that new
evidence must be considered.241 Whether such a remedy would be acceptable
probably depends on whether measures are taken to decrease the risk of error under
the CSRT procedures. It seems unlikely that a court would consider itself
constitutionally obligated to permit a detainee to enter the United States and be
released into the United States unless the detainee has previously formed some ties to
the country.242
234 28 U.S.C. § 2243.
235 Rules Governing § 2255 Cases, Rule 7, 28 U.S.C.A. foll. § 2255 (applicable to prisoners
subject to sentence of a federal court).
236 28 U.S.C. § 2243.
237 28 U.S.C. § 2255.
238 CSRT Implementing Directive, supra note 28, at encl. 1, para. I(9)-(10).
239 See Mark Denbeaux et al., No-Hearing Hearings, CSRT: The Modern Habeas Corpus?,
at 37-40 (2006), available at [http://law.shu.edu/news/final_no_hearing_hearings_report.
pdf]. The named author is a professor at Seton Hall University School of Law and serves
as counsel to two Guantanamo detainees.
240 Boumediene at 2271.
241 See Gov’t Br. in Opp. to Pet. for Reh’g, Boumediene v. Bush, No. 16-1195 (U.S.).
242 See, e.g., Landon v. Plasencia, 459 U.S. 21, 32 (1981) (“This Court has long held that an
alien seeking initial admission to the United States requests a privilege and has no
constitutional rights regarding his application, for the power to admit or exclude aliens is
a sovereign prerogative”); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 216
(continued...)

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Extraterritorial Scope of Constitutional Writ of Habeas. In Boumediene,
the Supreme Court held that the constitutional writ of habeas extended to persons
detained at Guantanamo, even though they are held outside the de jure sovereign
territory of the United States. Left unresolved in the Court’s discussion of the
extraterritorial application of the Constitution is the degree to which the writ of
habeas and other constitutional protections applies to aliens detained in foreign
locations other than Guantanamo (e.g., at military facilities in Afghanistan and
elsewhere, or at any undisclosed U.S. detention sites overseas). The Boumediene
Court indicated that it would take a functional approach in resolving such issues,
taking into account “objective factors and practical concerns” in deciding whether the
writ extended to aliens detained outside U.S. territory. Practical concerns mentioned
in the majority’s opinion as relevant to an assessment of the writ’s extraterritorial
application include the degree and likely duration of U.S. control over the location
where the alien is held; the costs of holding the Suspension Clause applicable in a
given situation, including the expenditure of funds to permit habeas proceedings and
the likelihood that the proceedings would compromise or divert attention from a
military mission; and the possibility that adjudicating a habeas petition would cause
friction with the host government.243 The Boumediene Court declined to overrule the
Court’s prior decision in Eisentrager, in which it found that convicted enemy aliens
held in post-WWII Germany were precluded from seeking habeas relief. Whether
enemy aliens are held in a territory that more closely resembles post-WWII Germany
than present-day Guantanamo may influence a reviewing court’s assessment of
whether the writ of habeas reaches them, as well as its assessment of the merits of the
underlying claims.
Use of Habeas Proceeding to Challenge the Jurisdiction of a Military
Commission. Whether detainees who are facing prosecution by a military
commission may challenge the jurisdiction of such tribunals prior to the completion
of their trial remains unsettled, although the district court has so far declined to enjoin
military commissions.244 Supreme Court precedent suggests that habeas corpus
proceedings may be invoked to challenge the jurisdiction of a military court even
where habeas corpus has been suspended.245 Habeas may remain available to
242 (...continued)
(1953) (finding that an inadmissible alien’s “right to enter the United States depends on the
congressional will, and courts cannot substitute their judgment for the legislative mandate”).
On the other hand, whether or not a habeas court would ever deem the release into the
United States of an alien with no prior ties to the country as an appropriate remedy to his
unlawful detention abroad remains uncertain. At least one Guantanamo detainee has
requested a federal district court to order the government to parole him into the United
States pending resolution of his habeas claim. Husaifa Parhat’s Motion for Immediate
Release on Parole into the Continental United States Pending Final Judgment on His Habeas
Petition, In re: Guantanamo Bay Litigation, No. 05-1509 (July 23, 2008).
243 Boumediene at 2261-62.
244 See Khadr v. United States, No. 07-1405 (D.C. Cir. June 20, 2008); Hamdan v. Gates,
No. 04-1519 (JR) (D.D.C. July 18, 2008)(order denying injunction of military commission
proceedings).
245 See ex parte Milligan, 71 U.S. (4 Wall.) 2, 115-16 (1866); cf. ex parte Quirin, 317 U.S.
(continued...)

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defendants who can make a colorable claim not to be enemy combatants within the
meaning of the MCA, and therefore to have the right not to be subject to military trial
at all, without necessarily having to await a verdict or exhaust the appeals process.246
Interlocutory challenges contesting whether the charges make out a valid violation of
the law of war, for example, seem less likely to be entertained on a habeas petition.247
Congressional Authority over Federal Courts
Whether Congress can limit the ability of detainees to bring cases challenging the
conditions of their detention may depend on the extent that such challenges are based
on constitutional considerations. If it is determined that no other procedure is
available to vindicate constitutional rights, then it might be argued that the Congress’s
limitation on the use of habeas corpus or other avenues of redress by the detainees is
an unconstitutional limitation.
The Constitution contains few requirements regarding the jurisdiction of the
federal courts. Article III, Section 1, of the Constitution provides that
The judicial Power of the United States, shall be vested in one supreme Court, and
in such inferior Courts as the Congress may from time to time ordain and
establish.248 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,249 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,
245 (...continued)
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”).
246 Schlesinger v. Councilman, 420 U.S. 738, 759 (1975)(finding judicial abstention is not
appropriate in cases in which individuals raise “ ‘substantial arguments denying the right
of the military to try them at all,’ “ and in which the legal challenge “turn[s] on the status
of the persons as to whom the military asserted its power”); United States ex rel. Toth v.
Quarles, 350 U.S. 11, 76 (1955).
247 Cf. New v. Cohen, 129 F.3d 639, 643 (D.C. Cir. 1997).
248 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.”
249 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.

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of the lower federal courts, to Congress.250 Utilizing its power to establish inferior
courts, Congress has also created the United States district courts,251 the courts of
appeals for the thirteen circuits,252 and other federal courts.253
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.”254 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.”255
Thus, it is clear that while Congress has significant authority over administration
of the judicial system, it may not exercise its authority over the courts in a way that
violates constitutional rights such as the Fifth Amendment due process clause or
precepts of equal protection. For instance, Congress could not limit access to the
judicial system based on race or ethnicity.256 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.257 In general, the mere fact Congress
is exercising its authority over the courts does not serve to insulate such legislation
from constitutional scrutiny.
250 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.
251 28 U.S.C. §§ 81-131, 132.
252 28 U.S.C. §§ 41, 43 (District of Columbia Circuit, First Circuit through Eleventh Circuit,
Federal Circuit).
253 See, e.g., 28 U.S.C. §§ 151 (U.S. bankruptcy courts); 251 (U.S. Court of International
Trade).
254 Williams v. Rhodes, 393 U.S. 23, 29 (1968).
255 United States v. Bitty, 208 U.S. 393, 399-400 (1908).
256 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).
257 The Fifth Amendment provides that no “private property [ ] be taken for public use
without just compensation.”

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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,258 the Supreme Court has
reemphasized separation of powers as a vital element in American federal
government.259 Justice Kennedy, in Boumediene stressed his view that the writ of
habeas corpus itself plays an important role in preserving the operation of separation
of powers principles.260
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,261 several
Justices objected to a congressional enactment that authorized the federal courts to
hear claims for disability pensions for veterans. The courts were to certify their
decisions to the Secretary of War, who was authorized either to award each pension
or to refuse it if he determined the award was an “imposition or mistaken.” The
Justices on circuit contended that the law was unconstitutional because the judicial
power was committed to a separate department and because the subjecting of a court’s
opinion to revision or control by an officer of the executive or the legislative branch
was not authorized by the Constitution. Congress thereupon repealed the objectionable
features of the statute.262 More recently, the doctrine of separation of powers has been
258 424 U.S. 1, 109-43 (1976).
259 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).
260 Boumediene at 2259( calling the writ of habeas corpus “an indispensable mechanism for
monitoring the separation of powers”).
261 2 U.S. (2 Dall.) 409 (1792). This case was not actually decided by the Supreme Court,
but by several Justices on circuit.
262 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).

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applied to prevent Congress from vesting jurisdiction over common-law bankruptcy
claims in non-Article III courts.263
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.
Legislative Action in the 110th Congress
Congress passed a reporting requirement in the the National Defense
Authorization Act for FY2008 addressing detainees at Guantanamo. Several bills
have been introduced to authorize and regulate the detention of terrorist suspects, and
others would amend the restrictions on detainees’ ability to seek habeas review. The
Senate Judiciary Committee Subcommittee on Terrorism, Technology and Homeland
Security held a hearing December 11, 2007, entitled “The Legal Rights of
Guantanamo Detainees: What Are They, Should They Be Changed, and Is an End in
Sight?”
National Defense Authorization Provisions
The National Defense Authorization Act for Fiscal Year 2008, P.L. 110-181
(H.R. 4986), section 1067 requires the President to submit a report that contains
information about detainees at Guantanamo Bay, Cuba, under the control of the Joint
Task Force Guantanamo, who are or have ever been classified as “enemy
combatants.” The report is to identify the number of detainees who are to be tried by
military commission; the number of detainees to be released or transferred; the
number of detainees to be retained but not charged; and a “description of the actions
required to be undertaken, by the Secretary of Defense, possibly the heads of other
Federal agencies, and Congress, to ensure that detainees who are subject to an order
calling for their release or transfer from the Guantanamo Bay facility have, in fact,
been released.”
The Senate reported a provision in two earlier versions of the FY2008 Defense
authorization bill, S. 1547 and S. 1548, that would have required the Secretary of
Defense to convene a CSRT, conducted in accordance with requirements similar to
those that apply in military commissions, to determine the status of each detainee who
has been held for more than two years as an “unlawful enemy combatant,” unless such
detainee is undergoing trial or has been convicted by a military commission. The
provision adopted the definition of “unlawful enemy combatant” from the MCA, with
the addition of an alien who is not a lawful combatant and who has been a “knowing
263 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).

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and active participant in an organization that engaged in hostilities against the United
States.” The provision would have prohibited the use of information acquired through
coercion not amounting to cruel, inhuman or degrading treatment (as defined in the
DTA) unless the totality of the circumstances renders the statement reliable and
possessing sufficient probative value; the interests of justice would best be served by
admission of the statement into evidence; and the Tribunal determines that the alleged
coercion was incident to the lawful conduct of military operations at the point of
apprehension; or the statement was voluntary. The provision was stripped out of the
Senate version of the National Defense Authorization Act for Fiscal Year 2008 (H.R.
1585) prior to passage by the Senate.
The House-passed version of the National Defense Authorization Act for Fiscal
Year 2009, H.R. 5658, contains a provision that would prevent the Department of
Defense from implementing a successor regulation to Army Regulation 190-8, Enemy
Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, until
60 days after Congress is notified, (§ 1064). The bill would also declare military
interrogation to be an inherently governmental function, prohibiting the use of contract
personnel to interrogate detainees, (§1077). The Senate is considering a similar
provision in its version of the FY2009 National Defense Authorization Act, S. 3001
and S. 3002.
Habeas Corpus Amendments
Several bills have been introduced in both Houses of Congress to amend the
habeas provisions in the DTA. H.R. 1189, the Habeas Corpus Preservation Act,
would provide that the MCA is to be construed to avoid any effect on the right of any
U.S. resident to habeas corpus. Some of these would also amend the definition of
“enemy combatant” in the MCA and revise other aspects of judicial review.
The Military Commissions Habeas Corpus Restoration Act of 2007, H.R. 267,
would repeal subsection (e) of 28 U.S.C. § 2241. The bill would add a new Section
1632 to Title 28 providing that no court has jurisdiction to hear cases against the
United States or its agents by aliens detained as enemy combatants except for the
reviews provided in the DTA and habeas corpus petitions. H.R. 2826 would amend
28 U.S.C. § 2241(e) to allow habeas corpus actions and requests for injunctive relief
against transfer, except in cases of detainees held in an active war zone where the
Armed Forces are implementing AR 190-8 or any successor regulation. However,
habeas challenges related to the decisions of CSRT would be limited to the United
States Court of Appeals for the District of Columbia Circuit under the same
restrictions in scope that currently apply to appeals of CSRT decisions under the DTA.
The bill would also amend 10 U.S.C. § 950j(b) to restore jurisdiction for habeas
corpus, but not for other actions, related to the prosecution, trial or judgment of a
military commission.
H.R. 2710 would repeal 28 U.S.C. § 2241(e) to restore jurisdiction over all cases
related to the detention of persons as “enemy combatants,” but would prohibit
challenges other than habeas corpus actions in cases relating to the prosecution, trial,
or judgment of a military commission. H.R. 2543, the Military Commissions
Revision Act of 2007, would revise the definition of unlawful enemy combatant to
cover only a “person who has engaged in, attempted, or conspired to engage in acts

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of armed hostilities or terrorism against the United States or its co-belligerents, and
who is not a lawful enemy combatant.” Under the bill, CSRT decisions would no
longer be dispositive for purposes of determining the jurisdiction of military
commissions. Statements obtained by a degree of coercion less than torture would be
admissible in a military commission only if the military judge finds that “the totality
of the circumstances indicates that the statement possesses probative value to a
reasonable person; the interests of justice would best be served by admitting the
statement into evidence; and the interrogation methods used to obtain the statement
do not amount to cruel, inhuman or degrading treatment.” Habeas corpus jurisdiction
would be restored for alien enemy combatants after two years since the date of
detention if no criminal charges are pending against the detainee.
S. 185/H.R. 1416, the Habeas Corpus Restoration Act, would repeal subsection
(e) of 28 U.S.C. § 2241, but would amend 10 U.S.C. § 950j so that court jurisdiction
would continue to be unavailable for detainees seeking to challenge military
commissions, except through the limited procedures under the DTA, as amended, and
“as otherwise provided in [chapter 47a of title 10, U.S. Code] or in section 2241 of
title 28 or any other habeas corpus provision.” S. 185 was reported favorably by the
Senate Judiciary Committee without amendment.264 S. 576, the Restoring the
Constitution Act of 2007, and its companion bill, H.R. 1415, would amend the
definition of “unlawful enemy combatant” in the MCA, 10 U.S.C. § 948a, to mean an
individual who is not a lawful combatant who “directly participates in hostilities in a
zone of active combat against the United States,” or who “planned, authorized,
committed, or intentionally aided the terrorist acts on the United States of September
11, 2001” or harbored such a person. A status determination by a CSRT or other
tribunal would no longer be dispositive of status under 10 U.S.C. § 948d. The bills
would also expressly restrict the definition of “unlawful enemy combatant” for use in
designating individuals as eligible for trial by military commission. They would
repeal 28 U.S.C. § 2241(e), but limit other causes of action related to the prosecution,
trial, and decision of a military commission. DTA provisions related to the limited
review of status determinations and final decisions of military commissions would be
eliminated, and appeals of military commissions would be routed to the Court of
Appeals for the Armed Forces. H.R. 1415 would expand the scope of that review to
include questions of fact. With respect to the Geneva Conventions, the bills would
eliminate the MCA provision excluding their invocation as a “source of rights” by
defendants (10 U.S.C. § 948b(g)), replacing it with a provision that military
commission rules determined to be inconsistent with the Geneva Conventions are to
have no effect. They would also add a reference to the effect that the President’s
authority to interpret the Geneva Conventions is subject to congressional oversight
and judicial review. Finally, the bills would provide for expedited challenges to the
MCA in the D.C. district court. (Provisions amending the War Crimes Act or military
commission procedures are not covered in this report.)
S. 1876 would modify the MCA definition of “enemy combatant” to mean
persons other than lawful combatants who have engaged in hostilities against the
United States or who have purposefully and materially supported hostilities against
the United States (other than hostilities engaged in as a lawful enemy combatant). It
264 S.Rept. 110-90.

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would also exclude from the definition U.S. citizens and persons admitted for
permanent residence in the United States, as well as persons taken into custody in the
United States. The bill would provide for jurisdiction in the United States District
Court for the District of Columbia to hear habeas petitions by persons determined by
the United States to have been properly detained as an enemy combatant or persons
detained for more than 90 days without such a determination. The court would also
have jurisdiction to hear petitions by persons who have been tried by military
commissions after they have exhausted the appeals process. Provisions of S. 1876
that address restrictions on detention and liability are described in the next section.
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),
but was not adopted.265 (After President Bush vetoed H.R. 1585, Congress passed a
virtually identical bill, H.R. 4846, which became P.L. 110-181).
H.R. 6247, the “Boumediene Jurisdiction Correction Act,” would provide
“exclusive original jurisdiction” to hear habeas petitions by persons held under
military authority at Guantanamo, apparently including U.S. military personnel, to the
“courts established under the Uniform Code of Military Justice and operating in that
part of Cuba.” Because courts-martial are the only courts under the UCMJ that
operate at the naval base, and these are not standing courts that would be capable of
accepting such petitions, perhaps the bill should be interpreted to refer the civilian
court created by the UCMJ with jurisdiction over Guantanamo. Under this
interpretation, all habeas petitions by persons detained at Guantanamo would have to
be referred to the Court of Appeals for the Armed Forces (CAAF). Otherwise, it
seems habeas petitions for prisoners at Guantanamo would have to be referred to a
commanding officer with court-martial convening authority there, which seems
unlikely to provide the sort of independent collateral review that the Boumediene
Court seemed to view as constitutionally required.
Bills to Regulate Detention
S. 1249 and H.R. 2212 would require the President to close the detention
facilities at Guantanamo Bay and either transfer the detainees to the United States for
trial (by military proceeding or Article III court) or for detention as enemy combatants
as may be authorized by Congress; to transfer detainees to an appropriate international
tribunal operating under U.N. auspices; to transfer detainees to their country of
citizenship or a different country for further legal process, where adequate assurances
are given that the individual will not be subject to torture or cruel, inhuman, or
degrading treatment; or to release them from any further detention.
S. 1876, the “National Security with Justice Act of 2007,” would limit
extraterritorial detention and rendition, modify the definition of “unlawful enemy
combatant” for purposes of military commissions, and extend statutory habeas corpus
to detainees at Guantanamo. The bill defines “aggrieved person” as an individual
who is detained or subjected to rendition overseas by a U.S. officer or agent, except
265 S.Amdt. 2022 to S.Amdt. 2011 to H.R. 1585, 153 CONG. REC. S11559 (daily ed. July 19,
2007).

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as authorized, excluding any individual who is an international terrorist (a non-U.S.
person who “engages in international terrorism or activities in preparation therefor,”
and any person (apparently including U.S. persons) who knowingly aids, abets or
conspires with such a non-U.S. person in the commission of a terrorist act or activity
in preparation of a terrorist act). An aggrieved person would have the right to sue the
head of the agency or department responsible for his or her unlawful detention or
rendition for damages, including punitive damages.
Extraterritorial rendition and detention would generally be permitted only with
proper authorization by order of the Foreign Intelligence Surveillance Court (FISC),
a court set up to authorize electronic surveillance of agents of foreign powers in the
United States. Certain types of renditions and detentions appear to be excluded from
these general requirements, including those of persons detained by the United States
in Guantanamo on the act’s date of enactment who are transferred to a foreign legal
jurisdiction, as well as the rendition or detention of individuals detained or transferred
by the U.S. Armed Forces under circumstances governed by, and in accordance with,
the Geneva Conventions. Otherwise, extraterritorial detention would require the
authorization of the President or the Director of National Intelligence based on a
certification that the failure to detain that individual “will result in a risk of imminent
death or imminent serious bodily injury to any individual or imminent damage to or
destruction of any United States facility” or the factual basis exists to demonstrate the
individual is an international terrorist and there is reason to believe that the detention
or rendition of such person is important to the national security of the United States.
An application for detention must be submitted to the FISC within 72 hours in order
to detain the person.
Conclusion
The Administration’s policy of detaining wartime captives and suspected
terrorists at the Guantanamo Bay Naval Station has raised a host of novel legal
questions regarding, among other matters, the relative powers of the President and
Congress to fight terrorism, as well as the power of the courts to review the actions
of the political branches. The DTA was Congress’s first effort to impose limits on the
President’s conduct of the Global War on Terrorism and to prescribe a limited role for
the courts. The Supreme Court’s decision striking the DTA provision that attempted
to eliminate the courts’ habeas jurisdiction may be seen as an indication that the Court
will continue to play a role in determining the ultimate fate of the detainees at
Guantanamo. However, the Court did not foreclose all options available to Congress
to streamline habeas proceedings involving detainees at Guantanamo or elsewhere in
connection with terrorism. Instead, it indicated that the permissibility of such
measures will be weighed in the context of relevant circumstances and exigencies.
As a general matter, the courts have not accepted the view that the President has
inherent constitutional authority to detain those he suspects may be involved in
international terrorism. Rather, the courts have looked to the language of the AUMF
and other legislation to determine the contours of presidential power. The Supreme
Court has interpreted the AUMF with the assumption that Congress intended for the
President to pursue the conflict in accordance with traditional law-of-war principles,

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and has upheld the detention of a “narrow category” of persons who fit the traditional
definition of “enemy combatant” under the law of war. Other courts have been willing
to accept a broader definition of “enemy combatant” to permit the detention of
individuals who were not captured in circumstances suggesting their direct
participation in hostilities against the United States, but a plurality of the Supreme
Court warned that a novel interpretation of the scope of the law of war might cause
their understanding of permissible executive action to unravel. Consequently,
Congress may be called upon to consider legislation to support the full range of
authority asserted by the executive branch in connection with the GWOT. In the event
the Court finds that the detentions in question are fully supported by statutory
authorization, whether on the basis of existing law or new enactments, the key issue
is likely to be whether the detentions comport with due process of law under the
Constitution.

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