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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 more than 500 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 have filed more than a dozen petitions on behalf of some 60 detainees in the District Court for the District of Columbia, where judges have reached conflicting conclusions as to whether the detainees have any enforceable rights to challenge their treatment and detention. In one, Hamdan v. Rumsfeld, a federal judge ruled that a petitioner must be treated as a prisoner of war until a competent tribunal has decided otherwise, in accordance with the Geneva Conventions, and that the procedural rules the Department of Defense set up to govern military commissions are inconsistent with the Uniform Code of Military Justice (UCMJ), and therefore, the commissions lack jurisdiction. The government temporarily suspended the operation of military tribunals until the D.C. Circuit Court of Appeals reversed the district court's opinion, and the Supreme Court granted certiorari, where the case is pending as of the date of this report. The Senate approved an amendment introduced by Senator Graham to S. 1042, the National Defense Authorization Act for FY2006, that would require the Secretary of Defense to report to Congress how it determines whether individual detainees are properly detained as enemy combatants, and to give to the District of Columbia Circuit Court of Appeals exclusive jurisdiction to hear appeals of those determinations, but also to foreclose the detainees' ability to petition for habeas corpus in any court. If enacted, the appeals provision of the Graham Amendment may allow detainees to raise many of the claims they might have raised in petitioning for a writ of habeas corpus, but may exclude some detainees from seeking any relief. The bill could end litigation at the district court, but 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 available alternative procedures. This report provides an overview of the CSRT procedures, summarizes court cases related to the detentions and the use of military commissions, and summarizes the Graham Amendment and analyzes how it might affect detainee-related litigation in federal court. It will be updated as events warrant.
