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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 provided 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. In the 110th
Congress, several legislative proposals were introduced to modify detainees’ access to federal
courts. It appears likely that proposals will also be introduced in the 111th Congress that effect
detainees’ access to federal courts. President Barack Obama’s Executive Order calling for a (at
least temporary) halt in military commission proceedings and the closure of the Guantanamo
detention facility is likely to have implications for legal challenges raised by detainees.

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Introduction ..................................................................................................................................... 1
Early Developments in the Detention and Trial of Enemy Combatants Captured in the
“War on Terror”............................................................................................................................ 4
Rasul v. Bush ............................................................................................................................. 4
Combatant Status Review Tribunals ......................................................................................... 6
Pre-Boumediene v. Bush Court Challenges to the Detention Policy ............................................... 8
Khalid v. Bush ........................................................................................................................... 9
In re Guantanamo Detainee Cases ......................................................................................... 10
Hamdan v. Rumsfeld.................................................................................................................11
Jurisdiction........................................................................................................................ 12
Presidential Authority ....................................................................................................... 12
The Geneva Conventions and the Law of War ................................................................. 13
Analysis ............................................................................................................................ 13
Al-Marri .................................................................................................................................. 14
Detainee Treatment Act of 2005 (DTA) ........................................................................................ 18
The Military Commissions Act of 2006 (MCA) ........................................................................... 20
Provisions Affecting Court Jurisdiction .................................................................................. 21
Provisions Regarding the Geneva Conventions ...................................................................... 22
Post-MCA Issues and Developments ............................................................................................ 24
Possible Application to U.S. Citizens...................................................................................... 24
DTA Challenges to Detention ................................................................................................. 25
Bismullah v. Gates ............................................................................................................ 25
Parhat v. Gates.................................................................................................................. 28
Boumediene v. Bush....................................................................................................................... 30
Constitutional Right to Habeas ............................................................................................... 31
Adequacy of Habeas Corpus Substitute .................................................................................. 33
Implications of Boumediene ................................................................................................... 34
Executive Order to Close Guantanamo and Halt Military Commission Proceedings................... 35
Constitutional Considerations and Options for Congress.............................................................. 36
Scope of Challenges................................................................................................................ 40
The Fact and Length of Detention .................................................................................... 41
Conditions of Detention.................................................................................................... 42
Available Remedy ............................................................................................................. 44
Extraterritorial Scope of Constitutional Writ of Habeas................................................... 45
Use of Habeas Petitions to Challenge the Jurisdiction of Military Commissions ............ 46
Congressional Authority over Federal Courts ......................................................................... 46
Separation of Powers Issues.................................................................................................... 48
Legislative Activity in the 110th Congress..................................................................................... 49
National Defense Authorization Provisions ............................................................................ 49
Habeas Corpus Amendments.................................................................................................. 50
Bills to Regulate Detention ..................................................................................................... 52
Conclusion..................................................................................................................................... 53

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Author Contact Information .......................................................................................................... 54

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Following the terrorist attacks of 9/11, Congress passed the Authorization to Use Military Force
(AUMF), which granted the President the authority “to use all necessary and appropriate force
against those ... [who] planned, authorized, committed, or aided the terrorist attacks" against the
United States.”1 Soon thereafter, President Bush issued a military order formulating guidelines for
the detention and treatment of foreign belligerents captured in the “war on terror” and
establishing military commissions to try some detainees for violations of the law of war.2
Beginning in early 2002, the United States began transferring foreign belligerents captured in the
“war on terror” to the U.S. Naval Station in Guantanamo Bay, Cuba for preventative detention
and potential prosecution for any war crimes they may have committed.
In 2004, the Supreme Court issued two key rulings concerning the Executive’s authority to detain
persons in the “war on terror.” In Hamdi v. Rumsfeld, 3 a majority of the Court found that the 2001
AUMF permitted the preventative detention of enemy combatants captured during hostilities in
Afghanistan, including those who were U.S. citizens. A divided Court found that persons deemed
“enemy combatants” have the right to challenge their detention before a judge or other “neutral
decision-maker.” The Hamdi case concerned the rights of a U.S. citizen detained as an enemy
combatant, and the Court did not decide the extent to which this right also applied to noncitizens
held at Guantanamo and elsewhere. However, on the same day that Hamdi was decided, the Court
issued an opinion in the case of Rasul v. Bush,4 holding that the federal habeas corpus statute, 28
U.S.C. § 2241, provided federal courts with jurisdiction to consider habeas corpus petitions by or
on behalf of persons detained at Guantanamo.
The Court’s rulings in Hamdi and Rasul had two immediate consequences. First, the Department
of Defense (DOD) established Combatant Status Review Tribunals (CSRTs), an administrative
process to determine whether a detainee at Guantanamo was an “enemy combatant.” Secondly,
lawyers filed dozens of petitions on behalf of the detainees in the U.S. 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)5. The DTA
requires uniform standards for interrogation of persons in the custody of the 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 CSRTs, along with final decisions by military commissions.

1 P.L. 107-40.
2 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”).
3 542 U.S. 507 (2004).
4 542 U.S. 466 (2004).
5 P.L. 109-148, Title X; P.L. 109-163, Title XIV.
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However, in the 2006 case of Hamdan v. Rumsfeld,6 the Supreme Court interpreted these
provisions as being inapplicable to habeas cases that were pending at the time the DTA was
enacted, and it reviewed the validity of military commissions established pursuant to President
Bush’s 2001 military order. The Court held that the military tribunals established by the President
did not comply with the Uniform Code of Military Justice or the law of war which the Code
incorporates, including the 1949 Geneva Conventions. In response to the Hamdan ruling,
Congress enacted the Military Commissions Act of 2006 (MCA).7 The act authorized the
President to convene military commissions to try “unlawful alien combatants” for war crimes,
and also established procedural requirements for the commissions. As was the case under the
DTA, final decisions of military commissions are appealable to the D.C. Circuit. However, the
MCA provided that appeals of military commission judgments shall first be routed through the
newly-created Court of Military Commission Review. Of more immediate legal significance, the
MCA also expressly eliminated court jurisdiction over all pending and future causes of action,
other than pursuant to the limited review permitted under the DTA.
The complete elimination of habeas corpus review by Congress compelled the courts to directly
address an issue they had avoided reaching in earlier cases: Does the constitutional writ of habeas
corpus extend to noncitizens held at Guantanamo? The Constitution’s Suspension Clause
prohibits the suspension of habeas corpus except when public safety requires it in the case of
invasion or surrender. The MCA did not purport to be a suspension of habeas, and the
government did not make such a claim to the courts. Instead, the government argued that
noncitizens detained at Guantanamo receive no constitutional protections. Therefore, denying
these persons access to habeas review would not run afoul of the Suspension Clause. In the 2008
case of Boumediene v. Bush, the Court rejected this argument in a 5-4 opinion, and ruled that the
constitutional privilege of habeas extends to Guantanamo detainees.8 As a result of the
Boumediene decision, detainees currently held at Guantanamo may petition for habeas review of
their designation as enemy combatants. Several legal issues remain unsettled, including the scope
of habeas review available to detainees, the remedy available for those persons found to be
unlawfully held by the United States, and the extent to which other constitutional provisions
extend to noncitizens held at Guantanamo and elsewhere. The continuing availability of the
judicial process established by the DTA is also uncertain given the D.C. Circuit’s ruling in
January 2009 that the Boumediene decision effectively nullified this review process.9
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 Ali Saleh Kahlah al-Marri ,an alien
arrested in the United States and detained as an enemy combatant. In 2007, the court initially
granted habeas relief to al-Marri, who had been arrested in Illinois on criminal charges but then
transferred to South Carolina and detained in military custody as an “enemy combatant.”10 While
one judge on the panel dissented with respect to the holding that the detention was not authorized
by Congress, all three judges on the panel agreed that the MCA did not divest it of jurisdiction to
hear the petition, notwithstanding the MCA’s lack of geographical limits. The government asked
for, and was granted, a rehearing en banc.11 In 2008, the en banc court agreed that the

6 Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
7 P.L. 109-366.
8 Boumediene v. Bush, 553 U.S. __, 128 S.Ct. 2229 (2008).
9 Bismullah v. Gates, __ F.3d __, 2009 WL 48149 (D.C. Cir. January 9, 2009).
10 Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007).
11 Al-Marri v. Pucciarrelli, Case No. 06-7427 (4th Cir.).
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jurisdictional issue had been resolved by the Supreme Court’s decision in Boumediene, but found
little agreement as to the scope of activity making a person an “enemy combatant.”12 The
petitioner subsequently sought to appeal the ruling to the Supreme Court, and the Court granted
certiorari to review the appellate court’s decision in December, 2008.13 In January 2009, President
Barack Obama issued a memorandum instructing the Attorney General, Secretary of Defense, and
other designated officials to review the factual and legal basis for al-Marri’s continued detention
as an enemy combatant, and “identify and thoroughly evaluate alternative dispositions.”14
Depending upon the results of this review (e.g., if al-Marri is released from preventative detention
and placed in criminal or immigration removal proceedings), it is possible that the government
may request that the Court dismiss the case.
On January 22, 2009, President Obama issued an Executive Order requiring that the Guantanamo
detention facility be closed as soon as practicable, and no later than a year from the date of the
Order.15 The Order further requires specified officials to review all Guantanamo detentions to
assess whether the detainee should continue to be held by the United States, transferred or
released to a third country, or be prosecuted by the United States for criminal offenses.16 During
this review process, the Secretary of Defense is required to take steps to ensure that all
proceedings before military commissions and the United States Court of Military Commission
Review are halted.17 The closure of the Guantanamo detention facility and its resulting effects
seem likely to have implications for legal challenges raised by detainees, particularly if detainees
are brought to the United States, where they would arguably receive additional constitutional
protections.18
This report provides an overview of the CSRT procedures; summarizes selected court cases
related to the detentions and the use of military commissions; discusses the Detainee Treatment
Act, as amended by the Military Commissions Act of 2006, analyzing its effects on detainee-
related litigation in federal court; and discusses the Supreme Court’s decision in Boumediene and
possible effects upon legal challenges raised by detainees. 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 detainees held at Guantanamo and elsewhere.

12 Al-Marri v. Pucciarrelli, 534 F.3d 213 (4th Cir. 2008).
13 Al-Marri v. Pucciarelli, 129 S.Ct. 680 (U.S. 2008).
14 Memorandum from President Barack Obama to the Attorney General and Other Officials, “Review of the Detention
of Ali Saleh Kahlah al-Marri,” January 22, 2009, available at
http://www.whitehouse.gov/the_press_office/ReviewoftheDetentionofAliSalehKahlah/ (hereinafter “al-Marri Memo).
15 Executive Order 13492, “Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and
Closure of Detention Facilities,” 74 Federal Register 4897, January 22, 2009.
16 Id. at § 4.
17 Id. at § 7.
18 For further discussion, see CRS Report R40139, Closing the Guantanamo Detention Center: Legal Issues, by
Michael John Garcia et al.
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The Bush Administration determined in February 2002 that Taliban detainees are covered under
the Geneva Conventions,19 while Al Qaeda detainees are not,20 but that none of the detainees
qualifies for the status of prisoner of war (POW).21 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 in preventative detention even if they are acquitted of criminal charges 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, 2001,22 making them eligible for trial by military
commission for war crimes offenses.23 The Supreme Court, however, found that the procedural
rules established by the Department of Defense to govern the military commissions were not
established in accordance with the Uniform Code of Military Justice (UCMJ).24 The following
sections trace the judicial developments with respect to the detention of alleged enemy
combatants.
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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 Bush Administration
argued, and the court below had agreed, that under the 1950 Supreme Court case Johnson v.
Eisentrager,26 “‘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 Supreme 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.”27

19 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”).
20 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.
21 For more history and analysis, see CRS Report RL31367, Treatment of “Battlefield Detainees” in the War on
Terrorism, by Jennifer K. Elsea.
22 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”).
23 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.
24 10 U.S.C. § 801 et seq.
25 542 U.S. 466 (2004).
26 339 U.S. 763 (1950).
27 Rasul, 542 U.S. at 478-79. When Eisentrager was decided in 1950, the Rasul majority found, the “respective
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The Court also declined to read the statute to vary its geographical scope according to the
citizenship of the detainee. Justice Kennedy, in a concurring opinion, would have found
jurisdiction over the Guantanamo detainees based on the facts that Guantanamo is effectively a
U.S. territory and is “far removed from any hostilities,” and that the detainees are “being held
indefinitely without the benefit of any legal proceeding to determine their status.” Noting that the
Writ of Habeas Corpus (“Writ”) has evolved as the primary means to challenge executive
detentions, especially those without trial, the Court held that jurisdiction over habeas petitions
does not turn on sovereignty over the territory where detainees are held. Even if the habeas
statute were presumed not to extend extraterritorially, as the government urged, the Court found
that the “complete jurisdiction and control” the United States exercises under its lease with Cuba
would suffice to bring the detainees within the territorial and historical scope of the Writ.
Without expressly overruling Eisentrager, the Court distinguished the cases at issue to find
Eisentrager inapplicable. Eisentrager listed six factors that precluded those petitioners from
seeking habeas relief: each petitioner “(a) is an enemy alien; (b) has never been or resided in the
United States; (c) was captured outside of our territory and there held in military custody as a
prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United
States; (e) for offenses against laws of war committed outside the United States; (f) and is at all
times imprisoned outside the United States.”28 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 statute29 as well as the Alien Tort Statute,30 the Court applied the same reasoning
to conclude that nothing precluded the detainees from bringing such claims before a federal
court.31
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.32 The opinion did not address

(...continued)
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.
28 Rasul, 542 U.S. at 475 (citing Eisentrager, 339 U.S. at 777).
29 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.”).
30 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.”).
31 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”).
32 The Court noted that “Eisentrager made quite clear that all six of the facts critical to its disposition were relevant
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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.33 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 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.
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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.34 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.”35 CSRTs
have confirmed the status of at least 520 enemy combatants. Any new detainees that might be

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only to the question of the prisoners’ constitutional entitlement to habeas corpus.” Rasul, 542 U.S. at 476 (emphasis
original).
33 Hamdan, 548 U.S. at 626 (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, 128 S.Ct. at 2257.
34 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.
35 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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transported to Guantanamo Bay will go before a CSRT. The CSRTs are not empowered to
determine whether the enemy combatants are unlawful or lawful, which led two military
commission judges to hold that CSRT determinations are inadequate to form the basis for the
jurisdiction of military commissions.36 Military commissions must now determine whether a
defendant is an unlawful enemy combatant in order to assume jurisdiction.37
CSRTs are administrative rather than adversarial, but each detainee has an opportunity to present
“reasonably available” evidence and witnesses38 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.”39 Each detainee is represented by a military
officer (not a member of the Judge Advocate General (“JAG”) Corps)40 and may elect to
participate in the hearing or remain silent.41 The government’s evidence is presented by the
recorder, who is a military officer, preferably a judge advocate.42
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.”43 The government is required
to present all of its relevant evidence, including evidence that tends to negate the detainee’s
designation, to the tribunal.44 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.”45 Unclassified summaries of relevant evidence
may be provided to the detainee.46 The detainee’s personal representative may view classified

36 See Josh White and Shailagh Murray, Guantanamo Ruling Renews The Debate Over Detainees, WASH. POST, June 6,
2007, at A3.
37 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).
38 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 footnote
35, 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.
39 CSRT Order, supra footnote 28, at 1.
40 CSRT Implementing Directive, supra footnote 35, at encl. 1, para. B.
41 Id. at encl. 1, para. F.
42 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.
43 CSRT Implementing Directive, supra footnote 35, at encl. 1, para. G(7) & (11).
44 Id. at encl. 1, para. G(8).
45 Id. at encl. 10.
46 Id. at encl. 1, para. E(3)(a).
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information and comment on it to the tribunal to aid in its determination47 but does not act as an
advocate for the detainee.48 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).49
In March 2002, the Pentagon announced plans to create a separate process for periodically
reviewing the status of detainees.50 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.51 The
detainee’s State of nationality may be allowed, national security concerns permitting, to submit
information on behalf of its national.
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ȱ¢ȱ
While the Supreme Court clarified in Rasul (and later Boumediene, discussed infra) that detainees
presently held at Guantanamo 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 continues to remain unclear. Prior to the enactment of the DTA 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. Eisentrager52
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,53 others did not, holding for example that
detainees have the right to the assistance of an attorney.54 One judge found that a detainee has the
right to be treated as a POW until a “competent tribunal” decides otherwise,55 but the appellate

47 Id. at encl. 1, para. H(7).
48 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).
49 Id. at encl. 1, para. I(9)-(10).
50 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.
51 CSRT Implementing Directive, supra footnote 35, at encl. 10 (implementing Detainee Treatment Act provisions).
52 339 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”).
53 Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005); Hamdan v. Rumsfed, 464 F. Supp.2d 9 (D.D.C. 2006).
54 Al Odah v. United States, 346 F. Supp. 2d 1 (D.D.C. 2004).
55 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).
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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,56 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,
al-Marri, arrested in the United States and subsequently held in military custody as an enemy
combatant. The Supreme Court has granted certiorari to review the appellate court’s decision, and
it may issue a ruling in its current term.57 .
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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
Bush Administration that Congress, pursuant to the 2001 AUMF, granted the President the
authority to detain foreign enemy combatants outside the United States for the duration of the war
against al Qaeda and the Taliban, and that the courts have virtually no power to review the
conditions under which such prisoners are held. Noting that the prisoners had been captured and
detained pursuant to the President Bush’s military order,59 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.”60
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,61 and
gives the President virtually unlimited authority to exercise his war power wherever enemy
combatants are found.62 The circumstances behind the off-battlefield captures did, however,
apparently preclude the petitioners from claiming their detentions violate the Geneva

56 Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007).
57 129 S.Ct. 680 (U.S. 2008). Al-Marri has also petitioned separately for relief from certain conditions of detention. Al-
Marri v. Gates, Case No. 05-2259 (D.S.C. filed March 13, 2008).
58 355 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).
59 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.
60 355 F. Supp. 2d at 314.
61 Id. at 320.
62 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.
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Conventions.63 Other treaties put forth by the petitioners were found to be unavailing because of
their non-self-executing nature.64
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.”65 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.
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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.67
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,

63 Id. at 326.
64 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).
65 Id. at 330 (citations omitted).
66 355 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).
67 Id. at 465 (citing Hamdi v. Rumsfeld).
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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.”68 Judge Green stated that the indefinite detention of a person solely because
of his contacts with individuals or organizations tied to terrorism, and not due to any direct
involvement in terrorist activities, would violate due process even if such detention were found to
be authorized by the AUMF.69
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.
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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,70
arguing that the military commission rules and procedures were inconsistent with the UCMJ71 and
that he had the right to be treated as a prisoner of war under the Geneva Conventions.72 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,73 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,74 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

68 Id. at 475 (internal citations omitted).
69 Id. at 476.
70 344 F. Supp. 2d 152 (D.D.C. 2004), 415 F.3d 33 (D.C. Cir. 2005), rev’d 548 U.S. 557 (2006).
71 10 U.S.C. §§ 801 et seq.
72 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”).
73 344 F. Supp. 2d at 161.
74 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.
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that apply to courts-martial. After the appellate court decision was handed down, Congress passed
the DTA, which revoked federal court jurisdiction to hear habeas corpus petitions and other
causes of action brought by Guantanamo detainees. (The provisions of the DTA are discussed in
greater detail infra.) The Supreme Court nevertheless granted review and reversed.
ȱ
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.75 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,76 noting the dissimilarities between military commission trials and
ordinary courts-martial of service members pursuant to procedures established by Congress.77
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 21,78 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.
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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.”79 It disagreed with the government’s position that
Congress had authorized the commissions either when it passed the AUMF80 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

75Hamdan, 548 U.S.at 583-584. 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.
76 Id. at 577-578. The court below had also rejected this argument, 413 F.3d 33, 36 (D.C. Cir. 2005).
77 See id. (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.... ”).
78 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.”)
79 Hamdan, 548 U.S. at 591 (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.).
80 P.L. 107-40, 115 Stat. 224 (2001).
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authority to convene military commissions in circumstances where justified under the
‘Constitution and laws,’ including the law of war.”81
ȱ ȱȱȱȱ ȱȱȱ
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.82 The D.C. Circuit
nevertheless held that the Geneva Conventions are never enforceable in federal courts.83 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.”84 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.”85
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.86 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.
¢ȱ
While the Hamdan Court declared the military commissions as constituted under the President
Bush’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

81Hamdan, 548 U.S. at 594-595.
82 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”).
83 See 415 F.3d at 39 (citing Johnson v. Eisentrager, 339 U.S. 763, 789, n. 14(1950)).
84 Hamdan, 548 U.S.at 628.
85 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, 548 U.S.
at 630.
86 Id. at 633-634 (plurality opinion); id. (Kennedy, J., concurring) at 651. Justice Stevens, joined by Justices Ginsburg,
Breyer, and Souter, further based their conclusion on the basis that M.C.O. No. 1 did not meet all criteria of art. 75 of
Protocol I to the Geneva Conventions of 1949, adopted in 1977 (Protocol I). While the United States is not party to
Protocol I, the plurality noted that many authorities regard it as customary international law.
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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. Bush87 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.88
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.89 Expressly
or implicitly, all eight participating Justices applied the framework set forth by Justice Jackson in
his famous concurrence in the Steel Seizures case,90 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.91 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.
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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.

87 542 U.S. 466 (2004).
88 542 U.S. 507, 535 (2004).
89 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).
90 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
91 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, by Jennifer K. Elsea.
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Hamdan v. Rumsfeld, 548 U.S. 557, 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,92 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.93 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 country’s financial system through
computer hacking.”94 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.95 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.”96
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.”97

92 Al-Marri v. Rumsfeld, 360 F.3d 707 (7th Cir. 2004), cert. denied 543 U.S. 809 (2004).
93 Al-Marri v. Hanft, 378 F. Supp.2d 673 (D. S.C. 2005) (order denying summary judgment).
94 Al-Marri v. Pucciarelli, 534 F.3d 213, 220 (4th Cir. 2008)(Motz, J., concurring)(citing declaration Jeffrey N. Rapp,
Director of the Joint Intelligence Task Force for Combating Terrorism).
95 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.
96 Id. at 778-80.
97 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
(continued...)
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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, 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.98 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. Hanft99
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.’”100
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.”101 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,102 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.103 In contrast, al-Marri’s situation
was to be likened to Ex parte Milligan,104 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.105 The court concluded that
enemy combatant status rests, in accordance with the law of war, on affiliation with the military
arm of an enemy government in an international armed conflict.
Judge Hudson dissented, arguing that the broad language of the AUMF, which authorized the
President “to use all necessary and appropriate force against those nations, organizations, or
persons he determines” were involved in the terrorist attacks of September 11, 2001, “would
certainly seem to embrace surreptitious al Qaeda agents operating within the continental United
States.”106 He would have found no meaningful distinction between the present case and Padilla.

(...continued)
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, 534 F.3d 213 (2008)(per curiam).
98 Id. at 196.
99 423 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.
100 Al-Marri, 487 F.3d at 180 (citing Hamdi at 516-17)(emphasis in original).
101 Id. (citing Padilla, 423 F.3d at 390-91).
102 317 U.S. 1 (1942).
103 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).
104 71 U.S. (4 Wall.) 2 (1866).
105 Al-Marri, 487 F.3d at 189.
106 Id. at 196 (Hudson, J., dissenting).
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The government petitioned for and was granted a rehearing en banc.107 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.108 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.”109
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.”110 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 combat zone of that war.’”111 Under this definition, American
citizens arrested in the United States could also be treated as enemy combatants under similar

107 Al-Marri v. Pucciarelli, 534 F.3d 213(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.
108 Id. at 227-232 (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.
109 Al-Marri, 534 F.3d at 553 (Motz, J. concurring).
110 Id. at 253-254 (Traxler, J., concurring).
111 Id. at 258-259 (Traxler, J., concurring). 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 261 (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 285 (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 323-324 (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”).
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allegations,112 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.113
In December 2008, the Supreme Court agreed to hear an appeal of the Al-Marri ruling.114 The
Supreme Court’s decision may have implications for the continued detention of persons in U.S.
military custody who were captured away from the battlefield, including alleged members or
associates of Al Qaeda or the Taliban who did not directly engage in hostilities against the United
States or its coalition partners.
On January 22, 2009, President Obama instructed the Attorney General, Secretary of Defense,
and other designated officials to review the factual and legal basis for al-Marri’s continued
detention as an enemy combatant, and “identify and thoroughly evaluate alternative
dispositions.”115 Depending upon the outcome of this review, it is possible that al-Marri could be
transferred to a foreign country or prosecuted by U.S. authorities in federal civilian court. If al-
Marri is released from preventative detention, it is possible that the government will request that
the Supreme Court dismiss the case as moot.
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The DTA, passed after the Court’s decision in Rasul, requires uniform standards for interrogation
of persons in the custody of the Department of Defense,116 and expressly bans cruel, inhuman, or

112 See id. at 279-280 (Gregory, J., concurring).
113 Id. at 272. 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 be considered and employed.” Id. at 273.
114 129 S.Ct. 680 (2008).
115 al-Marri Memo, supra footnote 14
116 Section 1002 of P.L. 109-148 requires the DOD to follow the Army Field Manual for intelligence interrogation. See
Department of the Army Field Manual 2-22.3 (FM 34-52), Human Intelligence Collector Operations (2006).
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degrading treatment of detainees in the custody of any U.S. agency.117 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.118 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.119 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.120 This language appears to
have been added as a compromise because the Bush Administration reportedly sought to have the
Central Intelligence Agency excepted from the prohibition on cruel, inhuman and degrading
treatment on the grounds that the President needs “maximum flexibility in dealing with the global
war on terrorism.”121
The DTA also includes a modified version of the “Graham-Levin Amendment,”122 which requires
the Defense Department to submit to the Armed Services and Judiciary Committees the
procedural rules for determining detainees’ status.123 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,”124 although it
appears that the process is not an adequate substitute for habeas review. However, it no longer

117 Section 1003 of P.L. 109-148. See CRS Report RL33655, Interrogation of Detainees: Requirements of the Detainee
Treatment Act, by Michael John Garcia.
118 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.
119 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 ... ”).
120 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.
121 See Eric Schmitt, Exception Sought in Detainee Abuse Ban, N.Y. TIMES, October 25, 2005, at 16.
122 151 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).
123 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.
124 Boumediene, 128 S.Ct. at 2275 (2008).
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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
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 President
Bush’s Military Order) and whether those standards were consistent with the Constitution and
laws of the United States, to the extent applicable.
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After the Court’s decision in Hamdan, the Bush Administration proposed legislation to
Congress,125 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.126 The MCA also amended the DTA provisions
regarding appellate review and habeas corpus jurisdiction.

125 Senator Frist introduced the Bush 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 Bush 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.
126 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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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 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,127 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.128 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.129
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

127 MCA § 5.
128 10 U.S.C. § 950g(b).
129 MCA § 7.
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country, for example, on the basis that they fear torture or persecution. However, these matters
may be raised in habeas petition. The extent of relief the courts may be able to grant remains to
be addressed by the courts.
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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.130 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.131
Section 5 of the MCA, however, specifically precludes the application of the Geneva Conventions
to habeas or other civil proceedings.132 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.133 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.134
In addition, the act provides that the President shall have the authority to interpret the meaning of
the Geneva Conventions.135 The intended effect of this provision is unclear. While the President
generally has a role in the negotiation, implementation, and domestic enforcement of treaty
obligations,136 this power does not generally extend to “interpreting” treaty obligations, a role
more traditionally associated with courts.137 In general, Congress is prohibited from exercising

130 28 U.S.C. § 2241.
131 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).
132 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.”
133 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.”
134 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).
135 MCA § 6(a)(3)(A) provides that “the President has the authority for the United States to interpret the meaning and
application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations
of treaty obligations which are not grave breaches of the Geneva Conventions.”
136 See, e.g., id. (President is given power to promulgate higher standards and administrative regulations for violations
of treaty obligations).
137 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.”).
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powers allocated to another branch of government.138 In United States v. Klein,139 the Congress
passed a law designed to frustrate a finding of the Supreme Court as to the effect of a presidential
pardon.140 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.141 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.142 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.143 Another possible meaning is
that the President is being given the authority to apply the Geneva Conventions to particular fact
situations, such as specifying what type of interrogation techniques may be lawfully applied to a
particular individual suspected of being an enemy combatant. This interpretation is possible, but
it is not clear how the power to “interpret” would be significant in that situation, as the MCA
precludes application of the Geneva Convention in those contexts in which such interrogations
would be challenged—military commissions, habeas corpus, or any other civil proceeding.144
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

138 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).
139 80 U.S. (13 Wall.) 128 (1871).
140 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.
141 See generally Miller v. French, 530 U.S. 327, 350-51 (2000)(Souter, J., concurring).
142 MCA § 6(a)(3)(B).
143 “If the country with which the treaty is made is dissatisfied with the action of the legislative department, it may
present its complaint to the executive head of the government, and take such other measures as it may deem essential
for the protection of its interests. The courts can afford no redress. Whether the complaining nation has just cause of
complaint, or our country was justified in its legislation, are not matters for judicial cognizance.” Whitney v. Robertson
124 U.S. 190, 194 (1888).
144 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.
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procedures by Executive Order.145 Whether the President already had such power absent this
language is beyond the scope of this report.
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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 Bay146 and the petition of
an alien detained as an enemy combatant in a naval brig in South Carolina.147 Legislation
introduced to amend the MCA did not reach the floor of either house.148
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Some observers raised concern that the MCA permits the President to detain American citizens as
enemy combatants without trial.149 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,150 that the President has the
authority to detain U.S. citizens as enemy combatants pursuant to the AUMF,151 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,”152 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.153 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.)

145 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).
146 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).
147 Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007), vacated sub nom. Al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir.
2008) (per curiam).
148 See S. 4081 and H.R. 6381, 109th Cong.
149 See, e.g., Scott Shane and Adam Liptak, Detainee Bill Shifts Power to President, N.Y. TIMES, September 30, 2006,
at A1.
150 542 U.S. 507 (2004).
151 P.L. 107-40, 115 Stat. 224 (2001).
152 542 U.S. at 516.
153 Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005).
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In theory, the executive branch could detain a citizen as an enemy combatant and argue that the
definition of “unlawful enemy combatant” provided in the MCA, which does not explicitly limit
the definition to aliens and includes persons who provide material support to terror groups
engaged in hostilities against the United States, should also apply to the detention authority
already found by virtue of the AUMF. Constitutional due process would apply, and the citizen
could petition for habeas corpus to challenge his detention, but under the MCA, the citizen-
combatant would not be able to assert rights based on the Geneva Convention in support of his
contention that he is not an enemy combatant. In that sense, U.S. citizens could be affected by the
MCA even though it does not directly apply to U.S. citizens.
On the other hand, since the MCA definition for unlawful enemy combatant applies on its face
only for the purposes of the new chapter 47a of Title 10, U.S. Code (providing for the trial by
military commission of alien unlawful enemy combatants), it may be argued that outside of that
context, the term “enemy combatant” should be understood in the ordinary sense, that is, to
include only persons who participate 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.
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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.
In January 2009, the D.C. Circuit ruled that the judicial review system established under by the
DTA had been effectively nullified by the Supreme Court’s ruling Boumediene, meaning that
detainees could only challenge the legality of their confinement via habeas corpus review
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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.
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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 (Bismullah I).154 Rather,
the court decided, in order to determine whether a preponderance of evidence supported the
CSRT determinations, it must have access to all the information a CSRT “is authorized to obtain
and consider, pursuant to the procedures specified by the Secretary of Defense.” The court denied
the petitioners’ motion for discovery, at least for the time being, stating there was no need for
additional evidence to challenge a CSRT’s ruling that specific evidence or a witness was not
reasonably available. And, because the DTA does not authorize the court to hold a status
determination invalid as “arbitrary and capricious,” there was no need for it to evaluate the
conduct of other detainees’ CSRTs. The court also denied as unnecessary the petitioners’ motion
to appoint a special master.
The court also promised to enter a protective order to implement guidelines for handling
classified and sensitive information and for government monitoring of attorney client written
communications (“legal mail”). Again stressing its mandate under the DTA to determine whether
a preponderance of the evidence supports a CSRT’s status determination, the court found that
counsel for the detainees, to aid in their capacity to assist the court, should be presumed to have a
“need to know” all government information concerning their clients except for highly sensitive
information, in which case the government could present the evidence to the court ex parte. The
court rejected the government’s proposal that would have allowed the government, rather than the
court, to determine what unclassified information would be required to be kept under seal. With
respect to legal mail, the court agreed to the government’s proposal to have mail from attorneys to
detainees reviewed by a “privilege team,” composed of Department of Defense personnel not
involved in the litigation, to redact information not pertinent to matters within the court’s limited
scope of review.
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” (Bismullah II).155 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.156 The government then sought expedited review at the Supreme Court, urging the Court
to decide the cases concurrently with the Boumediene case, but the Court took no action on the

154 Bismullah v. Gates, 501 F.3d 178 (Bismullah I), reh’g denied 503 F.3d 137(D.C. Cir. 2007) (Bismullah II).
155 Bismullah II, 503 F. 3d 137 (D.C. Cir. 2007).
156 Bismullah v. Gates, 514 F.3d 1291 (D.C. Cir. 2008).
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request.157 Instead, it granted certiorari and vacated the decision, remanding for reconsideration in
light of its decision in Boumediene.158 On August 22, 2008, the D.C. Circuit reinstated without
explanation its decisions in Bismullah I and Bismullah II, presumably because it did not find the
Boumediene ruling to conflict with its decisions in these cases.159
The government subsequently petitioned for a rehearing of the case, arguing that the Supreme
Court’s ruling in Boumediene effectively nullified the system of Circuit Court review established
by the DTA, as Congress had not intended for detainees to have two judicial forums in which to
challenge their detention.160 The D.C. Circuit granted the government’s motion for rehearing, and
on January 9, 2009, a three-judge panel held that, in light of the Supreme Court’s ruling
Boumediene restoring detainees’ ability to seek habeas review of the legality of their detention,
the appellate court no longer had jurisdiction over petitions for review filed pursuant to the DTA.
Writing for the panel, Judge Douglas H. Ginsburg described both the text of the DTA and the
subsequent jurisdiction-stripping measures of the MCA left no doubt that Congress understood
review under DTA to be a substitute for and not a supplement to habeas corpus and hence the
exclusive means by which a detainee could contest the legality of his detention in a court….”161
In the aftermath of Boumediene, Judge Ginsburg wrote, the DTA “can no longer function in a
manner consistent with the intent of Congress.”162 Accordingly, the Circuit Court panel held that
the DTA may no longer serve as an avenue of judicial review of detainees’ claims, as Congress
had intended this review process to be available to detainees only in the absence of the
availability of habeas review. It remains to be seen whether the panel’s decision will be subject to
further consideration, either by the Circuit Court sitting en banc or via appeal to the Supreme
Court.

157 Gates v. Bismullah (U.S., filed February 14, 2008) (07-1054).
158 Gates v. Bismullah, 128 S.Ct. 2960 (2008). 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. See Bismullah I, 501 F.3d at 193 (Rogers, J.
Concurring). 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. Id. Finally, she noted evidence that the CSRTs do not necessarily follow their
own regulations regarding the collection and presentation of evidence. Id. (citing differences between written
procedures and those described by Rear Admiral James M. McGarrah in the Boumediene case).
159 Bismullah v. Gates, Case No. 06-1197, Order (D.C. Cir. August 22, 2008) (per curium), available at
http://www.scotusblog.com/wp/wp-content/uploads/2008/08/bismullah-order-8-22-08.pdf.
160 Bismullah v. Gates, __ F.3d __, 2009 WL 48149 (D.C. Cir. January 9, 2009). In a previous case, the government
had argued for abeyance of a detainee’s petition for review of his detention under DTA procedures pending conclusion
of habeas proceedings. The D.C. Circuit granted the government’s motion for abeyance, and raised the possibility in
dicta that the Boumediene had foreclosed direct Circuit Court review under the DTA. Basardh v. Gates
545 F.3d 1068 (D.C. Cir. 2008).
161 Bismullah, 2009 WL 48149 at *6.
162 Id.
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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.163
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 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.164 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.165
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.166
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

163 Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008).
164 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.
165 Parhat, 532 F.3d at 838, quoting Dept. of Def. Order Establishing Combatant Status Review Tribunal (July 7,
2004), at 1.
166 Id.
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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.”167 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 combatant,”168 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.”169
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,”170 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.171
The continuing viability of the Circuit Court’s ruling in Parhat is unclear given the Court’s
subsequent ruling in Bismullah that the DTA review process has been nullified. However, the
Circuit Court panel in Bismullah implied that, despite its determination that the DTA review
process was no longer available to detainees, the Circuit Court’s ruling in Parhat remains in
force.172
The government has declined to reconvene CSRTs for Parhat and 16 other Uighurs being detained
at Guantanamo, and no longer considers them enemy combatants. However, the DOD continues
to maintain custody over them pending their transfer to a third country. Thus far, the government
has been unable to effectuate their transfer to a country where they would not face a substantial
risk of torture or persecution. The Uighurs filed habeas petitions with the U.S. District Court for

167 Id. at 846-847.
168 Id. at 847.
169 Id.at 849.
170 Parhat, 532 F.3d at 850 .
171 Id. at 851.
172 Bismullah, 2009 WL 48149 at *6, n, 2.
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D.C., and requested that they be released into the United States pending the court’s final judgment
on their habeas petitions. In October 2008, District Court Judge Ricardo M. Urbina found that the
government had no authority to detain the petitioners and ordered their release into the United
States, 173 at least until they may be transferred to a third country. The government quickly filed
an emergency motion with the D.C. Circuit to temporarily stay Judge Urbina’s ruling pending the
Circuit Court’s disposition of a government motion for a stay pending appeal. The emergency
motion was granted by a three-judge panel of the Circuit Court.174 Later, the panel granted the
government’s motion for expedited review of the district court’s order and, in a 2-1 decision, a
stay of the Uighurs’ transfer pending review of the district court’s ruling.175
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The petitioners in Boumediene were 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 on the basis that the MCA’s “court-stripping”177
provision was unconstitutional.178 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 States179 and the 1950 Supreme Court case
Johnson v. Eisentrager,180 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.181 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,182 with three Justices
dissenting to the denial and two Justices explaining the basis for their support.183 In June 2007,

173 In re Guantanamo Bay Detainee Litigation, 581 F.Supp.2d 33 (D.D.C. 2008).
174 Kiyemba v. Bush, No. 08-5424, Order (D.C. Cir., October 8, 2008) (per curiam).
175 Kiyemba v. Bush, No. 08-5424, 2008 WL 4898963, Order (D.C. Cir., October 20, 2008) (per curiam).
176 For further discussion, see CRS Report RL34536, Boumediene v. Bush: Guantanamo Detainees’ Right to Habeas
Corpus, by Michael John Garcia.
177 The practice of divesting courts of jurisdiction over particular issues is sometimes referred to as “court-stripping.”
178 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).
179 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).
180 339 U.S. 763 (1950).
181 476 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)).
182 Boumediene v. Bush, 127 S.Ct. 1478 (2007).
183 Justice Stevens, joined by Justice Kennedy, wrote a statement explaining their view that, “despite the obvious
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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 that petitioners had a constitutional right to habeas that was withdrawn by
the MCA in violation of the Constitution’s Suspension Clause.184
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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.”185 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.186 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

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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.
184 U.S. CONST. Art. 1, § 9, cl. 2.
185 Boumediene, 128 S.Ct. 2229 at 2248 (citing INS v. St. Cyr, 533 U. S. 289, 300—301(2001)).
186 Id. at 2247.
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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.”187
Instead, the Court characterized its prior jurisprudence as recognizing that the Constitution’s
extraterritorial application turns on “objective factors and practical concerns.”188 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.189 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,190 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.”191
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 concluded that the case before it
“lack[ed] any precise historical parallel.”192 In particular, the Court noted that the Guantanamo

187 Id. at 2253.
188 Id. at 2258.
189 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).
190 Boumediene, 128 S.Ct. 2229 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).
191 Id. at 2260.
192 Id. at 2262.
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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.
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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.193 Additionally, the
necessary scope of habeas review may be broader, depending upon “the rigor of any earlier
proceedings.”194
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,”195 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 risk of error in the
tribunal’s findings of fact.”196 “[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.”197
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

193 Boumediene, 128 S. Ct. 2229 at 2266-67.
194 Id. at 2268.
195 Id. at 2269.
196 Id. at 2270.
197 Id.
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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.”198
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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 concerning unlawful conditions of treatment or
confinement or to protest a planned transfer to the custody of another country.199
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.

198 Id. at 2275.
199 See Boumediene, 128 S. Ct. 2229 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.”).
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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.”200
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.
Over 200 habeas petitions have been filed on behalf of Guantanamo detainees in the U.S. District
Court for the District of Columbia. In the aftermath of the Boumediene ruling, the District Court
adopted a resolution for the coordination and management of Guantanamo cases. The resolution
calls for all current and future Guantanamo cases to be transferred by the judge to whom they
have been assigned to Senior Judge Thomas F. Hogan, who has been designated to coordinate and
manage all Guantanamo cases so that they may be “addressed as expeditiously as possible as
required by the Supreme Court in Boumediene v. Bush.... ”201 Judge Hogan is responsible for
identifying and ruling on procedural issues common to the cases. The transferring judge will
retain the case for all other purposes, though Judge Hogan is to confer with those judges whose
cases raise common substantive issues, and he may address those issues with the consent of the
transferring judge. District Court Judges Richard J. Leon and Emmet G. Sullivan have declined to
transfer their cases for coordination, and it is possible that the three judges may reach differing
opinions regarding issues common to their respective cases. Litigation concerning detainees’
habeas claims remains ongoing. Final rulings have been reached in a few cases. In some
instances, detainees have been ordered released,202 while in others, detention has been deemed
lawful.203
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On January 22, 2009, President Barack Obama issued an Executive Order requiring that the
Guantanamo detention facility be closed as soon as practicable, and no later than a year from the
date of the Order.204 Any persons who continue to be held at Guantanamo at the time of closure

200 Id. at 2275. Whether the MCA continues to preclude judicial consideration of such claims is a subject that has not
been definitely resolved. In the aftermath of Boumediene, district court judges have continued to give effect to MCA §
7(a)(2), which bars judicial review of claims relating to conditions of detainees’ confinement. See Khadr v. Bush, __
F.Supp.2d __, 2008 WL 4966523, at *8 (D.D.C., November 24, 2008) (“the Supreme Court appears to have left ... [the
MCA’s bar on judicial review of conditions of detention] undisturbed”); In re Guantanamo Bay Detainee Litigation,
577 F.Supp.2d 312, 314 (D.D.C.2008) (Hogan, J.) (“Cognizant of the long-standing rule of severability, this Court,
therefore, holds that MCA § 7(a)(2) remains valid and strips it of jurisdiction to hear a detainee’s claims that ‘relat[e] to
any aspect of the detention, transfer, treatment, trial, or conditions of confinement ... ’”). See also In re Guantanamo
Bay Detainee Litigation, 570 F.Supp.2d 13 (D.D.C.2008) (Urbina, J.) (holding that MCA § 7(a)(2) was not invalidated
by Boumediene, but declining to decide whether constitutional writ of habeas permits challenges to conditions of
confinement).
201 U.S. Dist. Court for the District of Columbia, Resolution of the Executive Session, July 1, 2008, available at
http://www.dcd.uscourts.gov/public-docs/system/files/Guantanamo-Resolution070108.pdf.
202 See, e.g., el Gharani v. Bush, __ F.Supp.2d __, 2009 WL 88056 D.D.C., January 14, 2009); Boumediene v. Bush,
579 F.Supp.2d 191(D.D.C. 2008) (granting five detainees’ habeas petitions)
203 See, e.g., Sliti v. Bush, __ F.Supp.2d __, 2008 WL 5411121, Order (D.D.C., December 30, 2008); Boumediene, 579
F. Supp. 2d, at 198 (denying one habeas petition and granting five others).
204 Executive Order, “Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Closure
(continued...)
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are to be either transferred to a third country for continued detention or release, or transferred to
another U.S. detention facility. The Order further requires specified officials to review all
Guantanamo detentions to assess whether the detainee should continue to be held by the United
States, transferred or released to a third country, or be prosecuted by the United States for
criminal offenses.205 Reviewing authorities are required to identify and consider the legal,
logistical, and security issues that would arise in the event that some detainees are transferred to
the United States. The Order also requires reviewing authorities to assess the feasibility of
prosecuting detainees in an Article III court. During this review period, the Secretary of Defense
is required to take steps to ensure that all proceedings before military commissions and the United
States Court of Military Commission Review are halted.
The full implications of this Order upon ongoing litigation involving persons currently detained at
Guantanamo remain to be seen. However, the closure of the Guantanamo detention facility would
raise a number of legal issues with respect to the individuals presently interned there, particularly
if those detainees are transferred to the United States. The nature and scope of constitutional
protections owed to detainees within the United States may be different than those available to
persons held at Guantanamo or elsewhere. This may have implications for the continued
detention or prosecution of persons transferred to the United States. Although the scope of
constitutional protections owed to Guantanamo detainees remains a matter of legal dispute, it is
clear that the procedural and substantive due process protections of the Constitution apply to all
persons within the United States, regardless of their citizenship.206 Accordingly, detainees
transferred to the United States might be able to more successfully pursue legal challenges against
aspects of their detention that allegedly infringe upon constitutional protections owed to them.207
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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.

(...continued)
of Detention Facilities,” January 22, 2009, available at http://www.scotusblog.com/wp/wp-
content/uploads/2009/01/guantanamo-exo-1-22-09.pdf (hereinafter “Executive Order”).
205 Id. at § 4. The Order specifies that the review shall be conducted by the Attorney General (who shall also
coordinate the review process), the Secretary of Defense, the Secretary of State, the Secretary of Homeland Security,
the Director of National Intelligence, the Chairman of the Joint Chiefs of Staff, as well as other officers or full- or part-
time employees of the U.S. government (as determined by the Attorney General, with the concurrence of the relevant
department head) with intelligence, counterterrorism, military, or legal expertise.
206 Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“the Due Process Clause applies to all ‘persons’ within the United
States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent”).
207 For further discussion and analysis, see CRS Report R40139, Closing the Guantanamo Detention Center: Legal
Issues, by Michael John Garcia et al.
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The Writ of Habeas Corpus (ad subjiciendum), also known as the Great Writ, has its origin in
Fourteenth Century England.208 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.209 The habeas statute provides jurisdiction to hear petitions
by persons claiming that they are held “in custody in violation of the Constitution or laws or
treaties of the United States.”210 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.211 Minor irregularities in trial procedures that do not amount to violations of
fundamental constitutional rights are generally to be addressed on direct appeal.212
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,213 but it has been explained that the Constitution obligates Congress
to provide “efficient means by which [the Writ] should receive life and activity.”214 While the
Court has stated that “at the absolute minimum, the Suspension Clause protects the writ ‘as it
existed in 1789,’”215 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.”216 The Boumediene Court declined to
adopt a date of reference by which the constitutional scope of the writ is to be judged.217
Accordingly, it remains unclear whether statutory enhancements of habeas review can ever be
rolled back without implicating the Suspension Clause.218 The constitutionally mandated scope of

208 For a general background and description of related writs, see 39 AM. JUR. 2d. Habeas Corpus § 1 (1999).
209 See generally S. DOC. NO. 108-17 at 848 et seq.
210 Rasul v. Bush, 542 U.S. 466 (2004).
211 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.”).
212 39 AM. JUR. 2d. Habeas Corpus § 27 (1999).
213 Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807).
214 Id. at 94.
215 INS v. St. Cyr, 533 U.S. 289, 301 (U.S. 2001).
216 Felker v. Tupin, 518 U.S. 663 (1996)(citing Swain, 430 U.S. 372).
217 See Boumediene, 128 S.Ct. 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.”).
218 Cf. St. Cyr, 533 U.S. at 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
(continued...)
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the writ may turn on 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.219 Congress also retains the option of withdrawing habeas jurisdiction if it
provides an effective and adequate alternative means of pursuing relief.220 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.”221 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.222 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.
In 2008, Attorney General Michael Mukasey recommended that Congress enact new legislation
to eliminate the DTA appeals process and make habeas corpus the sole 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

(...continued)
may subsequently alter what it had initially provided for, lest the Clause become a one-way ratchet.”).
219 Cf. Felker, 518 U.S. 663 (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, 128 S.Ct. 2229 at 2276-77 (explaining that some reasonable regulations on habeas cases to relieve
governmental burden or preserve security will be permissible).
220 See United States v. Hayman, 342 U.S. 205 (1952); Hill v. United States, 368 U.S. 424 (1962); Swain , 430 U.S. 372
(1977); Felker, 518 U.S. 651 (1996); St. Cyr, 533 U.S. 289.
221 Boumediene, 128 S.Ct. 2229 at 2266.
222 The Boumediene Court did not address the matter because the MCA did not purport to act as a formal suspension of
the writ. Boumediene, 128 S.Ct. at 2262.
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on July 21, 2008,223 Attorney General Mukasey discussed this suggestion along with five other
points he felt 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 suspects224 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,225 but jurisdiction over offenses involving the 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.226

223 The Attorney General’s prepared statement is available at http://www.scotusblog.com/wp/mukasey-curb-courts-
powers-on-detainees/.
224 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.
225 See, e.g., 18 U.S.C. § 2332 (prescribing penalties for homicides of U.S. nationals abroad 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).
226 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.
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Congress could also take no action and allow the courts to address the issues in the course of
deciding the habeas petitions already docketed.
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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 outside the United States. 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.227 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.228 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 turn on the unresolved question of which constitutional rights apply to aliens
detained in territory abroad. If detainees are transferred into the United States, the degree to
which Congress may limit their access to the courts may be subject to further constitutional
constraints.
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.229 Other
commentators point to sovereign immunity and the ability of the government to limit the
remedies available to plaintiffs.230 However, the Court has, in cases involving particular rights,
generally found a requirement that effective judicial remedies must be available.231 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.

227 Boumediene, 128 S. Ct. 2229 at 67.
228 See Boumediene, 128 S. Ct. 2229 at 37-38, 54-56.
229 486 U.S. at 612-13 (Scalia, J., dissenting).
230 Bartlett v. Bowen, 816 F.2d 695, 719-720 (1987)(Bork, J., dissenting).
231 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).
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At least until the D.C. Circuit’s ruling in the Bismullah case in January 2009, the DTA provided 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
DTA proceedings. 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.232 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.233
The D.C. Circuit’s jurisdiction under the DTA also included 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 Review Boards (ARBs)234 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,235 the DTA does not provide an avenue to appeal a decision not to
convene a new CSRT.236 The Supreme Court’s ruling that the constitutional writ of habeas
extends to Guantanamo suggests that detainees may seek habeas review in such cases.
The scope and standard for habeas review involving detainees has been the subject of several
orders by judges for the U.S. District Court for the District of Columbia. In such proceedings, the
government has the burden of demonstrating, by a preponderance of the evidence, the lawfulness
of the petitioner’s detention,237 If the government’s justification for detention is the petitioner’s

232 See Gov’t Br. Address. Pend. Prelim. Mots. at 49-51, Bismullah v. Gates, No. 06-1197 (D.C. Cir.).
233 Bismullah v. Gates, No. 06-1197 (D.C. Cir. July 20, 2007)(order on procedural motions).
234 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.
235 CSRT Implementing Directive, supra footnote 35, at encl. 10 (implementing Detainee Treatment Act provisions).
236 Boumediene, 128 S.Ct. 2229 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”).
237 See In re Guantanamo Bay Detainee Litigation, No. 08-0442, 2008 WL 4858241, Order, at *3 (D.D.C. November 6,
2008) (Hogan, J.) (hereinafter “November Order”).
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“enemy combatant” status, it must provide a definition of that term238 (though at least one district
court judge has opted to rely upon the definition used by the DOD in CSRT proceedings,
rejecting arguments raised by the Bush Administration in favor of a somewhat broader definition
in habeas cases239). The government is also required to provide the petitioner with all reasonably
available exculpatory evidence.240 In December 2008, Senior Judge Thomas F. Hogan, who is
coordinating and managing most Guantanamo cases for the District Court, issued a case
management order that, among other things, requires the government to disclose any evidence it
has relied upon to justify the petitioner’s detention.241 With respect to classified information,
Judge Hogan’s order requires the government, unless granted an exception by the district court
judge considering the case’s merits, to “provide the petitioner’s counsel with the classified
information, provided the petitioner's counsel is cleared to access such information. If the
government objects to providing the petitioner’s counsel with the classified information, the
government shall move for an exception to disclosure.” There is no requirement that classified
information be provided to a petitioner himself. Moreover, the order rescinds the requirement of
an earlier case management order that petitioners’ receive an “adequate substitute” for any
classified information disclosed to the court or petitioners’ counsel.242
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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.243 Persons
incarcerated in federal prisons may also ask a district court to address such complaints using their
general jurisdiction to consider claims that arise under the Constitution,244 by means of a writ of
mandamus.245 These writs, which are directed against government officials, have been used to

238 See Id. at * 1; el Gharani v. Bush, __ F.Supp.2d __, 2009 WL 88056, at *2 (D.D.C. January 14, 2009) (Leon, J.).
239 Boumediene v. Bush, No. 04-1166, Order (D.D.C. October 27, 2008) (Leon, J.), available at
http://www.scotusblog.com/wp/wp-content/uploads/2008/10/boumediene-order-10-27-08.pdf. See also supra, at
“Parhat v. Gates” (discussing definition of “enemy combatant” used in CSRT proceedings).
240 See November Order, supra footnote 237, at *1. See also Boumediene v. Bush, No. 04-1166, Order (D.D.C. August
27, 2008) (Leon, J.), available at http://www.scotusblog.com/wp/wp-content/uploads/2008/08/leon-case-manage-order-
8-27-08.pdf (requiring government to provide “any evidence contained in the material reviewed in developing the
return for the petitioner, and in preparation for the hearing for the petitioner, that tends materially to undermine the
Government’s theory as to the lawfulness of petitioner’s detention”).
241 In re Guantanamo Bay Detainee Litigation, No. 08-0442, 2008 WL 5245890, Order, at *1 (D.D.C., December 16,
2008) (Hogan, J.).
242 November Order, supra footnote 237, at *2.
243 “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).
244 28 U.S.C. § 1331. See Caldwell v. Miller, 790 F.2d 589 (7th Cir. 1986).
245 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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require those officials to act in compliance with constitutional requirements. Although these
challenges are often denied on the merits or on procedural grounds, cases have been brought
based on the First Amendment,246 Sixth Amendment,247 Eighth Amendment248 and various other
grounds.249
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.250 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 confinement251 when they can
be transferred,252 or whether they can have contact with relatives.253 Although some of these were
brought as habeas corpus cases,254 Guantanamo detainees have also sought relief from the courts
using the All Writs Act,255 principally to prevent their transfer to other countries without notice,256
but for other reasons too.257 Use of the All Writs Act by a court is an extraordinary remedy,
generally not invoked if there is an alternative remedy available.258 Thus far, reviewing courts
have interpreted Boumediene as finding only that the constitutional writ of habeas enables
Guantanamo detainees to challenge the legality of their detention, while judicial review of other
aspects of their detention continues to be barred under the MCA.259 If detainees currently held at
Guantanamo are transferred into the United States, they might be able to more successfully
pursue legal challenges against aspects of their detention that allegedly infringe upon
constitutional protections owed to them.

246 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).
247 Stover v. Carlson, 413 F. Supp. 718 (D. Conn. 1976) (ending federal prison practice of opening privileged
communications outside of prisoner’s presence).
248 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).
249 See generally Donaldson, supra footnote 225.
250 See Boumediene, 128 S. Ct. 2229 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.”).
251 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.
252 Al-Anazi v. Bush, 370 F. Supp. 2d 188 (D.D.C. 2005).
253 Josh White, Lawyers Seek Improved Conditions for Suicidal Detainee, WASH. POST, November 5, 2005, at A8.
254 See, e.g., In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 480-81 (D.D.C. 2005)(rejecting claims on other
grounds).
255 All Writs Act, 28 U.S.C. § 1651.
256 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). See also Al Ansi v. Bush, No. 08-
1923, 2008 WL 5412360, Order (D.D.C., December 29, 2008) (requiring government to give court and petitioner’s
counsel 30 days notice prior to releasing or transferring petitioner from Guantanamo).
257 See El-Banna v. Bush, No. No. 04-1144, 2005 U.S. Dist. LEXIS 16880 (D.D.C. July 18, 2005) (seeking
preservation of records relating to treatment of detainees).
258 Al-Anazi v. Bush, 370 F. Supp. 2d 188, 196 (D.D.C. 2005).
259 See supra footnote 200.
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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 detainee is not entitled to it.”260 The court can order either party to
expand the record by submitting additional information bearing on the petition.261 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,”262 or in criminal cases, to vacate a sentence, grant a new trial, or order
that a prisoner be released.263
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.264 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.265
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.266 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.267 Whether such a remedy would be acceptable
probably depends on whether measures are taken to decrease the risk of error under the CSRT
procedures.
The available remedy for Guantanamo detainees found to be unlawfully held by the United States
is an issue of ongoing litigation. The typical remedy for habeas claims is the release of the
individual being unlawfully detained.268 But given that detainees are being held in a military
facility in Cuba, it’s unclear whether the order of their release is a practical remedy, particularly in
cases where the government is unable to effectuate a detainee’s transfer to a third country.

260 28 U.S.C. § 2243.
261 Rules Governing § 2255 Cases, Rule 7, 28 U.S.C.A. foll. § 2255 (applicable to prisoners subject to sentence of a
federal court).
262 28 U.S.C. § 2243.
263 28 U.S.C. § 2255.
264 CSRT Implementing Directive, supra footnote 28, at encl. 1, para. I(9)-(10).
265 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.
266 Boumediene, 128 S.Ct. at 2271.
267 See Gov’t Br. in Opp. to Pet. for Reh’g, Boumediene v. Bush, No. 16-1195 (U.S.).
268 See, e.g., Munaf v. Geren, 553 U.S. __, 128 S.Ct. 2207, 2221 (2008) (“The typical remedy for ... [unlawful]
detention is, of course, release.”); Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (“[T]he traditional function of the
writ is to secure release from illegal custody”).
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Whether or not a court would have the power to craft a habeas remedy for Guantanamo detainee
that permits their entry into the United States remains unresolved. The Supreme Court has
recognized that habeas relief “is at its core, an equitable remedy,”269 and judges have broad
discretion to fashion an appropriate remedy for a particular case. On the other hand, in the
immigration context, courts have long recognized that the political branches have plenary
authority over whether arriving aliens may enter the United States.270 As previously discussed, in
October 2008, a federal district court ordered the release into the United States of 17 Guantanamo
detainees who were no longer considered enemy combatants, finding that the political branches’
plenary authority in the immigration context did not contravene the petitioners’ entitlement to an
effective remedy to their unauthorized detention.271 The D.C. Circuit has stayed the district
court’s order pending appellate review.272
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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
extraterritorial scope of the constitutional writ of habeas is the central issue in several district
court cases involving detainees held by the United States at the Bagram Air Base in
Afghanistan.273
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.274 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

269 Schlup v. Delo, 513 U.S. 298, 319 (1995).
270 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 (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”).
271 In re Guantanamo Bay Detainee Litigation, 581 F.Supp.2d 33(D.D.C. 2008).
272 Kiyemba v. Bush, No. 08-5424, 2008 WL 4898963, Order (D.C. Cir., October 20, 2008) (per curiam).
273 See, e.g., Wazir v. Rumsfeld, No. 06-1697 (D.D.C.); Maqalah v. Rumsfeld, No. 06-1669 (D.D.C.); Al Bakri v.
Gates, No. 08-1307 (D.D.C.); Al-Najar v. Gates, 08-2143 (D.D.C.).
274 Boumediene, 128 S.Ct. at 2261-62.
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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.
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Although President Obama has instructed the Secretary of Defense to take steps to ensure that
proceedings before military commissions are halted pending executive review of all Guantanamo
detentions, it is possible that some military commission proceedings will ultimately go
forward.275 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.276 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.277 Habeas may remain
available to 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,
perhaps without necessarily having to await a verdict or exhaust the appeals process.278
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.279
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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

275 On January 29, 2009, a military judge denied the government’s request to delay military commission proceedings
involving a detainee alleged to have planned the attack on the U.S.S. Cole in 2000. Other military judges had
previously agreed to government motions to delay commission proceedings. See Peter Finn, “Guantanamo Judge
Denies Obama's Request for Delay,” Washington Post, January 30, 2009, p. A14.
276 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).
277 See ex parte Milligan, 71 U.S. (4 Wall.) 2, 115-16 (1866); cf. ex parte Quirin, 317 U.S. 1, 24-25 (1942)(dismissing
contention that presidential proclamation stripped Court of authority to review case, stating that “nothing in the
Proclamation precludes access to the courts for determining its applicability to the particular case”).
278 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). But see Al Odah v. Bush, __ F.Supp.2d __, 2009 WL 22275 (D.D.C., January 06,
2009) (court would stay consideration of habeas claims during course of military commission proceedings, but stay
would not occur until charges were referred to commission); Khadr v. Bush, __ F.Supp.2d __, 2008 WL 4966523
(D.D.C., November 24, 2008) (ordering stay in habeas case to the extent that it raised issues that have been, will be, or
can be raised in military commission proceedings against petitioner and the subsequent appeals process).
279 Cf. New v. Cohen, 129 F.3d 639, 643 (D.C. Cir. 1997).
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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.280 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,281 nothing else about the Court’s structure and operation is set forth, leaving the size and
composition of the Court, as well as the specifics, if any, of the lower federal courts, to
Congress.282 Utilizing its power to establish inferior courts, Congress has also created the United
States district courts,283 the courts of appeals for the thirteen circuits,284 and other federal
courts.285
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.”286 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.”287
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.288 Nor, without

280 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.”
281 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.
282 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.
283 28 U.S.C. §§ 81-131, 132.
284 28 U.S.C. §§ 41, 43 (District of Columbia Circuit, First Circuit through Eleventh Circuit, Federal Circuit).
285 See, e.g., 28 U.S.C. §§ 151 (U.S. bankruptcy courts); 251 (U.S. Court of International Trade).
286 Williams v. Rhodes, 393 U.S. 23, 29 (1968).
287 United States v. Bitty, 208 U.S. 393, 399-400 (1908).
288 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
(continued...)
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amendment of the Constitution, could Congress provide that the courts may take property while
denying a right to compensation under the takings clause.289 In general, the mere fact Congress is
exercising its authority over the courts does not serve to insulate such legislation from
constitutional scrutiny.
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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,290 the Supreme Court has reemphasized separation of
powers as a vital element in American federal government.291 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.292
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,293 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.294 More recently, the doctrine of separation of powers has been applied to prevent

(...continued)
addressed her by her first name).
289 The Fifth Amendment provides that no “private property [ ] be taken for public use without just compensation.”
290 424 U.S. 1, 109-43 (1976).
291 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).
292 Boumediene, 128 S.Ct. at 2259 (calling the writ of habeas corpus “an indispensable mechanism for monitoring the
separation of powers”).
293 2 U.S. (2 Dall.) 409 (1792). This case was not actually decided by the Supreme Court, but by several Justices on
circuit.
294 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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Congress from vesting jurisdiction over common-law bankruptcy claims in non-Article III
courts.295
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.
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In the 110th Congress, several legislative proposals were introduced which address the detention
of persons in the “war on terror.” Congress passed a reporting requirement in the National
Defense Authorization Act for FY2008 addressing detainees at Guantanamo. Several other bills
were introduced that would have modified detainees’ access to the courts, or authorized or
imposed new requirements upon the detention of enemy combatants. It is possible that similar
proposals will be considered in the 111th Congress.296 The following paragraphs discuss legislative
activty in the 110th Congress concerning persons detained as enemy combatants.
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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
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

295 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).
296 See, e.g., H.R. 64, H.R. 374, H.R. 591, H.R. 630, S. 108, S. 147, S. 291 (111th Cong.).
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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, contained a provision that would have prevented 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
notification. The bill also would have declared military interrogation to be an inherently
governmental function, prohibiting the use of contract personnel to interrogate detainees. The
Senate considered a similar provision in its version of the FY2009 National Defense
Authorization Act, S. 3001 and S. 3002, each of which were passed by the Senate. As ultimately
enacted into law, however, the National Defense Authorization Act (P.L. 110-417), does not
prohibit interrogation by contract personnel, but expresses the sense of Congress that the
Secretary of Defense should develop resources needed to ensure that interrogations be conducted
by government personnel and rather than private sector contractors.
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Several bills were introduced in the 110th Congress to amend the habeas provisions in the DTA.
H.R. 1189, the Habeas Corpus Preservation Act, would have required that the MCA be construed
to avoid any effect on the right of any U.S. resident to habeas corpus. The Military Commissions
Habeas Corpus Restoration Act of 2007, H.R. 267, would have repealed subsection (e) of 28
U.S.C. § 2241. The bill would have added 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 have amended 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 have been 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 also would have amended 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 have repealed 28 U.S.C. § 2241(e) to restore jurisdiction over all cases related
to the detention of persons as “enemy combatants,” but would have prohibited 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 have revised the
definition of unlawful enemy combatant to cover only a “person who has engaged in, attempted,
or conspired to engage in acts of armed hostilities or terrorism against the United States or its co-
belligerents, and who is not a lawful enemy combatant.” Under the bill, CSRT decisions would no
longer be dispositive for purposes of determining the jurisdiction of military commissions.
Statements obtained by a degree of coercion less than torture would be admissible in a military
commission only if the military judge finds that “the totality of the circumstances indicates that
the statement possesses probative value to a reasonable person; the interests of justice would best
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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 also have been restored for alien enemy combatants after two years of
detention if no criminal charges were pending against the detainee.
S. 185/H.R. 1416, the Habeas Corpus Restoration Act, would have repealed subsection (e) of 28
U.S.C. § 2241, but would have amended 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.297 S. 576, the Restoring the Constitution Act of 2007, and its companion bill, H.R.
1415, would have amended 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 have no longer
been dispositive of status under 10 U.S.C. § 948d. The bills also would have expressly restricted
the definition of “unlawful enemy combatant” for use in designating individuals as eligible for
trial by military commission. They would have repealed 28 U.S.C. § 2241(e), but limited 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 have been eliminated, and appeals of military commissions would have been
routed to the Court of Appeals for the Armed Forces. H.R. 1415 would have expanded the scope
of that review to include questions of fact. With respect to the Geneva Conventions, the bills
would have eliminated 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 would have no effect. They would
also have added 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
have provided 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 have modified the MCA’s 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 also would have excluded 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 have provided 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
been given 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.

297 S.Rept. 110-90.
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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.298
(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 have provided “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 been required
to be referred to the Court of Appeals for the Armed Forces (CAAF). Otherwise, it seems habeas
petitions for prisoners at Guantanamo would have had to have been referred to a commanding
officer with court-martial convening authority there, which would have been unlikely to provide
the sort of independent collateral review that the Boumediene Court seemed to view as
constitutionally required.
H.R. 6705/S. 3401, the Enemy Combatant Detention Review Act of 2008, would have repealed
subsection (e) of 28 U.S.C. § 2241. It would have granted the U.S. District Court for the District
of Columbia exclusive jurisdiction over, and make it the exclusive venue for consideration of, all
habeas corpus applications by or on behalf of enemy combatants held at Guantanamo who are
not U.S. citizens or aliens who have been admitted for permanent residence in the United States.
All such applications would be consolidated before the Chief Judge of the District Court or a
designee for consolidated proceedings and determinations on common questions of fact or law. A
habeas corpus application could be filed to challenge the legality of the continued detention of a
covered individual, but not any other claims relating to his detention, transfer, treatment, trial, or
conditions of confinement, or any other action against the United States. The bills would have
required that applications of persons subject to military commission proceedings be stayed until
those proceedings were completed. The legislation would also have established procedures for
habeas corpus review of detainees, including the scope of permitted discovery, protection of
national security information; the allowance of video hearings so that a detainee may participate
from Guantanamo; and the admission of evidence (including hearsay).
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S. 1249 and H.R. 2212 would have required the President to close the detention facilities at
Guantanamo Bay and either (1) 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; (2) transfer detainees to an appropriate international tribunal operating under U.N.
auspices; (3) 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 (4) release them from any further detention.

298 S.Amdt. 2022 to S.Amdt. 2011 to H.R. 1585, 153 CONG. REC. S11559 (daily ed. July 19, 2007).
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S. 1876, the “National Security with Justice Act of 2007,” would have limited extraterritorial
detention and rendition, modified the definition of “unlawful enemy combatant” for purposes of
military commissions, and extended statutory habeas corpus to detainees at Guantanamo. The bill
defined “aggrieved person” as an individual who is detained or subjected to rendition overseas by
a U.S. officer or agent, except 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). The bill would have provided an aggrieved person with 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 generally would have been 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. The bill appears
to have excluded certain types of renditions and detentions from these general requirements,
including those of persons detained by the United States in Guantanamo on the act’s date of
enactment who were 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 have required 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. Under the bill, an application for
detention would have been required to be submitted to the FISC within 72 hours in order to detain
the person.
H.R. 6705/S. 3401 would have expressly authorized the detention of persons who have been
engaged in hostilities or who have purposefully and materially supported hostilities against the
United States or its co-belligerents on behalf of the Taliban, Al Qaeda, or associated forces. It
would have barred a court from releasing a person into the United States who has been designated
as an “enemy combatant” by a CSRT (other than a U.S. citizen or an alien admitted into the U.S.
for permanent residence) and also have made such persons ineligible for a entry visa or any
immigration status, subject to the waiver of the President. If a court were to grant a detainee’s
habeas application and order his release, he would be placed in the custody of the Secretary of
Homeland Security for transfer to the detainee’s country of citizenship or a third country.
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The Bush 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.
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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, 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 “war
on terror.” 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. In the
event that detainees currently held at Guantanamo are transferred into the United States, such
persons may receive more significant constitutional protections. These protections may inform
executive policy, legislative proposals, and judicial rulings concerning matters relating to
detainees’ treatment, continued detention, and access to federal courts.

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Jennifer K. Elsea
Legislative Attorney
jelsea@crs.loc.gov, 7-5466
Michael John Garcia
Legislative Attorney
mgarcia@crs.loc.gov, 7-3873
Kenneth R. Thomas
Legislative Attorney
kthomas@crs.loc.gov, 7-5006

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