Since the terrorist attacks of September 11 and the United States’ subsequent declaration of a global war on terror, a law of military detention has been emerging through habeas corpus petitions from detainees held at Guantanamo Bay Naval Base. The Authorization for Use of Military Force (AUMF), signed a week after the hijacked planes crashed into the Twin Towers, Congress granted the president the power to “use all necessary and appropriate force” against the nations, organizations, or persons he determined had played a role in those attacks. The Bush Administration widely interpreted this power to include the unlimited detention of suspected terrorists. Despite the variety of detention centers, (including undisclosed CIA black sites), at which many detainees were held since the beginning of hostilities in Afghanistan, Guantanamo has been and remains the center of attention, largely due to the media coverage of the treatment of its detainees. At one point holding almost 800 suspected terrorists from 42 different countries, today Guantanamo houses fewer than 200 detainees, many of whom are involved in ongoing litigation in the D.C. court system.
The law which has been emerging since the beginning of the detention controversy arose initially in the context of whether U.S. courts could exercise federal jurisdiction over detainees’ habeas corpus petitions, a question many believed had been settled by Johnson v Eisentrager, shortly after World War II. By the time the Supreme Court affirmatively answered the question of federal habeas corpus jurisdiction in 2008 with Boumediene v. Bush, there had already emerged a body of common law governing military detention. While Boumediene finally settled the question of federal courts’ habeas jurisdiction vis a vis Congress, many questions regarding the process and substance of habeas review remain unanswered.
Because only a select few habeas cases have made it to the Supreme Court, which has repeatedly declined to grant certiorari for central issues, the vast majority of the emerging law of detention has come from the common-law process of judge-made law in the D.C. Courts. Congress, after venturing into the fray with the DTA and the NDAA, seems at this point content to let the courts to define the contours of the law. Thus, in order to understand the law of executive detention as it stands today and determine where it might go in the future, one must examine the individual opinions of the judges hearing detainee’s habeas corpus petitions in the D.C. system.
The initial US government position concerning Guantanamo was that detainees were ‘unlawful enemy combatants,’ and as such none of protections contained in the Geneva conventions applied to them. It was argued that this new third category for detainees, (not recognized in any of the Geneva conventions), was necessitated by the unconventional tactics used by terrorists, making Guantanamo essentially a black hole of international law. With none of the protections afforded to prisoners of international conflict applicable, detainees at Guantanamo were held under any conditions the U.S. government determined appropriate. Although the initial authority to detain suspected terrorists was not seriously questioned with the memory of 9/11 still fresh, the rights of those being held at Guantanamo soon became a central issue when the media began coverage of the conditions and treatment of detainees. Human rights groups began pushing for the habeas corpus rights of both citizens and non-citizens, many of whom were being held indefinitely and had never been informed of the charges against them. A series of such cases reached the Supreme Court in 2004, paving the way for the comprehensive body of law that has emerged governing military detention to date.
In the first decision to push back against the broad assertion of the Bush administration’s authority to detain without limitation, the Supreme Court came to the opposite conclusion of a nearly identical case decided half a century prior in Johnson v. Eisentrager. The 14 petitioners, all foreign nationals, had been captured in Afghanistan and Pakistan during the early phases of the U.S. campaign against the Taliban and Al Qaeda and subsequently transferred to Guantanamo. Their families brought suit challenging the legality of their detention, alleging violation of their due process guarantees and seeking habeas corpus review. An important decision paving the way for future habeas petitions, the court found that despite their lack of U.S. citizenship the Guantanamo detainees could take advantage of federal habeas statute 28 U.S.C. §2241.
Writing for a 6-3 majority, Justice Stevens held that U.S. courts did indeed have jurisdiction to hear challenges to the detention of foreign nationals captured abroad in the course of armed conflict and subsequently detained outside the sovereign territory of the United States. In doing so, the Court was forced to distinguish the Guantanamo Bay Naval Base in Cuba from the U.S. Army facility in Germany were the German petitioners were detained in Johnson v. Eisentrager. By the express terms of its lease from Cuba, the U.S. government exercises “complete jurisdiction and control” over the Guantanamo Bay Naval Base, although Cuba retains ultimate sovereignty over the territory. The Court thus distinguished Rasul from Eisentrager based on the “plenary and exclusive jurisdiction” held by the U.S. over Guantanamo. Further, as opposed to the German nationals seeking habeas review in Eisentrager, the petitioners in Rasul were not nationals of a country at war with the United States, denied engaging in acts of violence against the U.S., and had never been charged with or convicted of any wrongdoing by a competent tribunal.
In an attempt to avoid directly overturning Eisentrager, Stevens interpreted the previous holding as applicable only to the detainees’ constitutional entitlement to habeas review, while the detainees at Guantanamo instead claimed a statutory entitlement to habeas review under 28 U.S.C. §2241. Eisentrager did not address the question of statutory entitlement, as at the time jurisdiction was contingent on physical presence within the court’s territorial jurisdiction. Today, jurisdiction under 28 U.S.C. § 2241 rests simply upon whether or not “the custodian can be reached by service of process.” Finding the federal habeas statute thus applied extraterritorially and was not dependent upon U.S. citizenship, Stevens concluded that detainees at Guantanamo were “entitled to invoke the federal courts’ authority under § 2241.”
A U.S. citizen being detained indefinitely at Guantanamo as an unlawful enemy combatant, Hamdi’s case reached the Supreme Court on appeal from the dismissal of his habeas corpus petition. Decided the same day as Rasul, the Court found the degree of control exercised by the United States over the Guantanamo Bay base was sufficient to trigger the application of habeas corpus rights there. Justice O’Conner, writing for a plurality, held that despite the inapplicability of the Geneva Convention protections, Hamdi was nonetheless entitled to some due process guarantees. Although the Court accepted the government’s argument that unlawful enemy combatants were not explicitly protected by under international law, it was suggested that a process similar to the procedure used by the military to determine compliance with the Geneva Conventions (Army Regulation 190-8) might be sufficient to resolve the due process concerns raised. This prompted the formation Combatant Status Review Tribunals (CSRTs) by the Department of Defense shortly after the opinion was released.
The Court also accepted the government’s argument that the AUMF implicitly conferred authority to the executive to detain traditional ‘incidents’ of warfare but declined to further elaborate who might be included within that category. Leaving the question of non-criminal detention of suspected terrorists in other circumstances open, O’Conner wrote merely that the AUMF’s detention authority would apply at least to a person who “fought against the United States in Afghanistan as part of the Taliban.” By accepting the AUMF as a basis for the government’s detainment authority, the court never reached the alternative argument of detention authority under Article II, leaving that as a yet-unused card in the back pocket of the current administration should the AUMF as a basis for military detention ever be seriously challenged. However, the fact that the Obama administration has not raised this argument in any habeas corpus case shows how well established the AUMF as a basis for detention authority has become.
Although the Court held Hamdi was entitled to the 5th Amendment rights of detainees challenging their detention to “receive notice of the factual basis for this classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker,” they immediately went on to make clarify that these would be no ordinary habeas corpus proceedings. Recognizing the exigencies of holding detainees in zone of active military operations, O’Conner wrote that the situation might justify tailoring proceedings to “alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict.” Hearsay, for example, might be acceptable in these proceedings, as would a presumption in favor of government evidence, as long as it was rebuttable. Although the government has consistently borne the burden of proof, this language has proven important in facilitating the ever-expanding scope of the government’s authority to detain in the lower courts. Today, hearsay is always admissible, although the weight given to such evidence must be weighed appropriately to its reliability, and presumptions of authenticity, and most recently, of the accuracy of evidence presented by the government have become the norm.
Despite their finding that international law protections were inapplicable to the detention of unlawful enemy combatants, the Court did use international law in interpreting of the outer limits of the authority granted by the AUMF. Instead of the indefinite detention authority claimed by the government, the court instead determined that detainees could be held “until the end of hostilities.” The legitimacy of using international law in interpreting the AUMF was recently called into question in Al-Bihani, although this has been an assumption relied upon by almost every court hearing detainee habeas corpus petitions up to that point. (see SCOPE OF GOV DETENTION AUTH.)
Department of Defense Response to Hamdi and Rasul:
Combatant Status Review Tribunals
In response to the due process challenges raised in Hamdi and Rasul, the Defense Department established CSRTs and ARBs to make factual status determinations of detainees who were then currently held at Guantanamo. The CSRT, a one time proceeding conducted for all detainees to determine whether they had been correctly classified as “enemy combatants,” these hearings were meant to conduct "a formal review of all the information related to a detainee to determine whether each person meets the criteria to be designated as an enemy combatant." If their status was found to be otherwise, the CSRT could recommend their release or repatriation, although no time frame was set in which this process was to be carried out. Detainees were not required to attend their CSRT, but were allowed access to a personal representative (who was however not allowed to advocate on their behalf), as well as to unclassified summaries of the charges against them. Although modeled the procedure used by the military to make determinations regarding prisoners of war in compliance with the Geneva conventions, CSRTs were conducted in private with only the redacted transcripts of certain high-level detainees released to the public. Following initial CSRT proceedings, it was determined that 38 detainees at Guantanamo had been classified as unlawful enemy combatants in error. The legitimacy of these proceedings was revisited in Boumediene.
Administrative Review Boards
Administrative Review Boards, (ARBs) were also established to mitigate concerns of indefinite detention following the one-time CSRT determination of a detainee’s status. The ARBs were established to conduct an annual review to determine if a detainees initially classified enemy combatants still represented a threat, and as such whether their continued detention was necessary. In the year following their establishment, ARBs conducted for the then 463 detainees at Guantanamo resulted in the recommendation of the release of 14 detainees and repatriation of 120.
Congressional Response to Hamdi and Rasul:
In 2005, Congress passed the Detainee Treatment Act (DTA), which attempted to eliminate statutory habeas jurisdiction established by Hamdi in favor of more limited form of judicial review exclusive to D.C. Court of Appeals. Among other things, the DTA (1) purported to strip all U.S. courts of jurisdiction to hear any habeas corpus petitions filed by Guantanamo detainees; (2) funneled review of any other actions relating to their detention from CSRTs into the U.S. Court of Appeals for the D.C. Circuit and limited the scope of the D.C. Circuit’s review of the CSRTs’ determinations; and (3) vested exclusive jurisdiction in the D.C. Circuit for review of decisions by military commissions and limited the scope of review. All three of these provisions took effect on the date of the DTA’s enactment, but provisions (2) and (3) were explicitly stated to apply to any claim pending on or after the date. By contrast, the DTA was silent about whether provision (1)—the provision stripping federal jurisdiction over detainees’ habeas corpus petitions—would apply to habeas petitions (like Hamdan’s) then pending, allowing the Supreme Court to assert jurisdiction in the next major case to advance the emerging law of executive detention.
Hamdan, a Yemeni citizen who allegedly served as Bin Laden’s personal bodyguard and driver, was captured in Afghanistan and subsequently detained at Guantanamo. A military commission was set to try him on charges of conspiracy, the legitimacy of which Hamdan challenged by writ of habeas corpus, alleging violation of his basic protections under both international law and the Uniform Code of Military Justice. As a threshold matter, the Court concluded that the DTA did not eliminate federal jurisdiction over detainees’ habeas petitions pending at the time of the its enactment, thus effectively side-stepping Congress’ attempt to strip the federal courts of jurisdiction.
Writing for a majority, Justice Stephens further limited the Bush administration’s understanding of the executive’s unilateral detention authority, finding that the President “may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his power.” The Court found that procedure set to try Hamdan had done just this, as the UCMJ requires military commissions comply with the Geneva Conventions. The procedure by which the military commission was set to proceed forbade the detainee, and often his attorney, from viewing certain classified evidence used in furtherance of the government’s case. The court found this procedure to be in violation of the basic safeguards contained in Common Article 3 of the 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.” In finding that Common Article 3 of the Geneva conventions applied to the war on terror despite the government’s argument that detainees were unlawful enemy combatants, a category not explicitly recognized in international law, Hamdan established baseline residual protections and basic judicial guarantees for detainees. Guantanamo was no longer a legal black hole.
The plurality’s finding (minus Justice Kennedy) that military commissions cannot try detainees for domestic offenses and their acceptance of the argument that conspiracy is not a war crime has once again come front and center (see Al Nashiri, Hamdan II).
Military Commissions Act of 2006 (MCA)
In response to the Court’s evisceration of the DTA in Hamdan, in 2006 Congress passed the Military Commission Act “authorize trial by military commission for violations of the law of war, and for other purposes." Having learned from their mistake in with the DTA, the MCA was clearly applicable to cases pending at the time of its enactment, and forbid the invocation of the Geneva Conventions in executing writs of habeas corpus. Wholly eliminating the statutory grant of federal jurisdiction and expanding the list of crimes triable by military commissions, the MCA authorized military commission to try any “unlawful enemy combatant,” setting the stage for the challenge of its constitutionality in Boumediene. The constitutionality of this was challenged in Boumediene, with the Court ultimately holding that the MCA §7 was an unconstitutional encroachment of habeas corpus rights, and firmly establishing jurisdiction for federal courts to hear petitions for habeas corpus from Guantanamo detainees tried under the Act. While the Act as a whole survived Boumediene, section 7, the provisions of MCA suspending habeas corpus are no longer in effect.
Boumediene, a naturalized citizen of Bosnia and Herzegovina, was the last Guantanamo detainee to successfully bring his case, (consolidated with that several other Guantanamo detainees) to the Supreme Court. He challenged both the legality of his detention at Guantanamo and the constitutionality of the MCA. Writing for a 5-4 majority, Justice Kennedy held that non-citizens detained at Guantanamo had a constitutional right to habeas corpus and found the MCA’s restriction of federal jurisdiction for detainee habeas cases to be an unconstitutional suspension of that right. Kennedy determined that the limited judicial review under the DTA’s direct appeals system did not adequately substitute for federal habeas review, as it did not afford detainees the opportunity to present fresh evidence to show they were not within the scope of the government’s detention authority. Although most of the MCA survived the opinion and military commissions may still prosecute enemy combatants, Boumediene’s holding that federal courts must have jurisdiction to hear detainee’s habeas corpus petitions seems to have finally settled the question of where the law will emerge from: the judiciary. By declining to elaborate on the procedure or substance of habeas review, the Supreme Court seems to have left an express invitation for the lower courts to determine the shape of the law.