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Summary:
After the U.S. Supreme Court held that U.S. courts have jurisdiction pursuant to 28 U.S.C. § 2241 to hear legal challenges on behalf of persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the war against terrorism (Rasul v. Bush), the Pentagon established administrative hearings, called "Combatant Status Review Tribunals" (CSRTs), to allow the detainees to contest their status as enemy combatants, and informed them of their right to pursue relief in federal court by seeking a writ of habeas corpus. Lawyers subsequently filed dozens of petitions on behalf of the detainees in the District Court for the District of Columbia, where judges have reached inconsistent conclusions as to whether the detainees have any enforceable rights to challenge their treatment and detention. In January 2006, 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, and did not resolve whether the petitioner could claim prisoner-of-war (POW) status, but held that "in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction." The Court's decision has led to efforts in Congress to enact legislation authorizing the President to convene military commissions. The proposed legislation (H.R. 6054, H.R. 6166, S. 3901, S. 3930, S. 3861, and S. 3886) would also amend the DTA to further reduce the access of aliens in U.S. custody overseas to federal court, to the extent that such jurisdiction existed, by eliminating pending and future causes of action other than the limited review of military proceedings permitted under the DTA. Implementation of the DTA, in its present form or as proposed to be amended, to preclude the detainees' access to court may raise constitutional issues with respect to the Suspension Clause (U.S. Const. Art. 1, § 9, cl. 2), whether it amounts to an impermissible "court-stripping" measure to deprive the Supreme Court 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. This report will be updated as events warrant.
