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Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court

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Publication Date: April 2009

Publisher(s): Library of Congress. Congressional Research Service

Series: RL33180

Topic: Justice (Prisoners and imprisonment)


After the U.S. Supreme Court held that U.S. courts have jurisdiction pursuant to 28 U.S.C. § 2241 to hear legal challenges on behalf of persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the war against terrorism (Rasul v. Bush), the Pentagon established administrative hearings, called "Combatant Status Review Tribunals" (CSRTs), to allow the detainees to contest their status as enemy combatants, and informed them of their right to pursue relief in federal court by seeking a writ of habeas corpus. Lawyers subsequently filed dozens of petitions on behalf of the detainees in the District Court for the District of Columbia, where district court judges reached inconsistent conclusions as to whether the detainees have any enforceable rights to challenge their treatment and detention.

In December 2005, Congress stepped into the fray, passing the Detainee Treatment Act of 2005 (DTA) to require uniform standards for interrogation of persons in the custody of the Department of Defense, and expressly to ban cruel, inhuman, or degrading treatment of detainees in the custody of any U.S. agency anywhere overseas. The DTA also divested the courts of jurisdiction to hear some detainees' challenges by eliminating the federal courts' statutory jurisdiction over habeas claims by aliens detained at Guantanamo Bay (as well as other causes of action based on their treatment or living conditions). The DTA provides instead for limited appeals of CSRT determinations or final decisions of military commissions.

In Hamdan v. Rumsfeld, the Supreme Court rejected the view that the DTA left it without jurisdiction to review a habeas challenge to the validity of military commissions established by President Bush to try suspected terrorists. In holding the military commissions invalid, the Court did not revisit its 2004 opinion in Hamdi v. Rumsfeld upholding the President's authority to detain individuals in connection with antiterrorism operations, but it did hold that "in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction."

The Court's decision led the 109th Congress to enact the Military Commissions Act of 2006 (MCA) (P.L. 109-366) to authorize the President to convene military commissions and to amend the DTA to further reduce the access to federal courts by "alien enemy combatants," by eliminating pending and future causes of action other than the limited review of military proceedings permitted under the DTA. The Court of Appeals for the D.C. Circuit dismissed the Guantanamo detainees' petitions for habeas corpus on the basis of the DTA, as amended. Although the Court has denied the petitioners certiorari (Boumediene v. Bush), it may eventually take up constitutional issues implicated by the MCA, including whether it violates the Suspension Clause (U.S. Const. Art. 1, § 9, cl. 2), whether it amounts to an impermissible "court-stripping" measure to deprive the judiciary of jurisdiction over matters of law entrusted to it by the Constitution, and whether such constitutionally sensitive issues can be avoided in light of the alternative procedures provided. Legislation to amend the MCA has been introduced (H.R. 267, S. 185, S. 576, H.R. 1415, H.R. 1416). This report will be updated as events warrant.