constitutional right to habeas, or indeed, any other constitutional rights."2 A strongly worded
dissent challenged this holding, arguing that the majority misread the relevant common law
precedent defining the scope of habeas corpus jurisdiction at the time the Constitution was
adopted, which the Suspension Clause was intended to preserve." The dissent also argued that
the majority misread the Supreme Court's Rasul decision-which previously confirmed the
habeas corpus rights of Guantánamo detainees-as merely a statutory construction, ignoring its
broader language suggesting that the habeas rights of Guantánamo detainees have a
constitutional basis." Petitioners are seeking Supreme Court review of this split decision.
Another case pending in the Fourth Circuit raises, among other questions, the issue of whether
Section 7 was intended to deny habeas to aliens lawfully residing and detained in the United
States.
We submit that Congress should not await judicial resolution of these and other issues concerning the habeas-stripping provisions. For regardless of whether Congress has the power to impose such restrictions on habeas corpus jurisdiction, they are wrong as a matter of policy and never should have been enacted. Such restrictions perpetuate an ongoing injustice that continues to damage the Nation's reputation in the world community. For the reasons discussed below, we submit that considerations of fairness and justice long reflected by habeas corpus, as well as the best interests of the United States, require the prompt repeal of these habeas-stripping provisions.
The MCA's removal of habeas jurisdiction deprives allen detainees, imprisoned without
charges possibly for the rest of their lives of their only hope of challenging that confinement
Boumediene v. Bush & Al Odah v. United States, Nos. 05-5062 & 05-5064, 2007 WL 506581, at *4-
8 (D.C. Cir. Feb. 20, 2007).
Id. at 12-17 (Rogers, J., dissenting).
15 See Al-Marri v. Wright, No. 06-7427 (4th Cir. 2007).
in proceedings affording them due process before a neutral arbiter. In addition, our recent
detention policies have already severely damaged the reputation of the United States in the
international community. Thus, the habeas-stripping provisions not only may perpetuate the
injustice of indefinite imprisonment without charge, but also will exacerbate the damage to our
world image.
Proponents of the habeas-stripping provision argue that alien detainees at Guantánamo
are not entitled to the protections of habeas corpus because they are "terrorists” and the "worst of
a very bad lot"; 16 that granting them habeas would be unprecedented under the Law of War and
comparable to claiming that the thousands of Axis prisoners of war captured in World War II
were entitled to habeas;" and that the detainees already receive adequate due process and
judicial review under procedures established by the DoD following the Supreme Court's decision
in Hamdi v. Rumsfeld.18 None of these arguments can be sustained.
Whether these detainees are "terrorists” is a question that must be determined by a fair and lawful process. Indeed, the sweeping assumption that all the detainees are "terrorists" has proven dangerously overbroad. Approximately half of the individuals who have been held at Guantánamo, in some cases for several years, have been subsequently released due to a lack of any evidence of wrongdoing. An additional 85 of the 393 detainees who remain in detention at Guantánamo have been found to pose no threat," but have had their release or transfer delayed because they might be tortured if they are returned to their home countries or because their home
16 Carol D. Leonnig & Julie Tate, Some at Guantánamo Mark 5 Years in Limbo, WASH. POST, Jan. 16,
2007, at Al (quoting Vice President Cheney).
See Government's Supplemental Brief Addressing the Military Commissions Act, Boumediene v.
Bush & Al Odah v. United States, Nos. 05-5062 & 05-5064, at 13-16 (D.C. Cir. Nov. 13, 2006).
Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (plurality opinion).
See Leonnig & Tate, supra note 16.
20 See Press Release, U.S. Department of Defense, Detainee Transfer Amounced (Feb. 21, 2007),
available at http://www.defenselink.mil.
countries will not accept the conditions that the United States seeks to impose.21 Moreover,
many detainees who remain in custody at Guantánamo and elsewhere were seized by unreliable
third parties enticed by the large bounties paid to them by U.S. forces in exchange for turning
over alleged supporters of Al-Qaeda or the Taliban.22 As DoD data has revealed, 86% of those
detained at Guantánamo who were picked up in Afghanistan were arrested not by the U.S.
military but by Pakistani or Northern Alliance forces and then turned over to the United States.
In short, the danger that many of those who remain in custody at Guantánamo and at
other sites have been wrongly seized is very high. As the Washington Post recently reported,
detainees such as Gholam Ruhani and Shakhrukh Hamiduva remain in captivity, despite
significant evidence that they are not guilty of any crime but were simply in the wrong place at
the wrong time.2
Stories such as these underline the error made by those who analogize these
detainees to prisoners of war captured on the battlefield during World War II. Many of the
Guantánamo detainees were not captured on the battlefield, and they were not wearing the
recognizable uniform of an opposing army in a declared war between nation states. Rather they
were turned over to U.S. forces under unclear circumstances, far from any battlefield, by third
parties with unknown and potentially self-interested agendas. Even those captured on or near a
21 See Leonnig & Tate, supra note 16.
The caption of one poster distributed by the CIA throughout Afghanistan in the aftermath of
September 11th, read: "You can receive millions of dollars for helping the Anti-Taliban Force catch
Al-Qaida and Taliban murderers. This is enough money to take care of your family, your village, your
tribe for the rest of your life. Pay for livestock and doctors and school books and housing for all your
people." Afghanistan Leaflets, http://www.psywarrior.com/afghanleaf40.html (last visited February
1, 2007).
JOSHUA DENBEAUX & MARK DENBEAUX, REPORT ON GUANTANAMO DETAINEES, A PROFILE OF 517
DETAINEES THROUGH ANALYSIS OF DEPARTMENT OF DEFENSE DATA 3 (2006), available at
http://law.shu.edu/aaafinal.pdf.
See Leonnig & Tate, supra note 16.
battlefield may have been non-combatants who were in the area for non-hostile reasons and
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Moreover, unlike prisoners held during conventional wars, these detainees are being held
in a "war on terror” with no foreseeable end, and thus face possible imprisonment for the rest of
their lives. The stripping of habeas jurisdiction means that these detainees will not be afforded
any opportunity to challenge their detention in a fair, adversarial process before a neutral arbiter.
Habeas proceedings traditionally have afforded broad review, including a searching
factual and legal inquiry into the government's proffered basis for detention.26 Further, an
individual imprisoned by the Executive without charge was historically entitled "to present his
own factual case to rebut the Government's return.""" This approach to the review of Executive
detention was developed and maintained over the centuries as a crucial means of preventing
abuses of power. As described below, however, the kind of review now provided to detainees
stands in sharp contrast to this tradition.
Most of these detainees will never be charged with a crime or tried by military
commission. The United States has indicated that only 60 to 80 of the Guantánamo detainees
will ever be brought before a military commission." Thus, the great majority of Guantánamo
detainees will have access only to a Combatant Status Review Tribunal ("CSRT”), an entity
23 See, eg.. Ilamdi, 542 U.S. at 534 (noting that basic due process is needed to ensure "that the errant
tourist, embedded journalist, or local aid worker has a chance to prove military error"); Steve Duin,
Justice a Casualty of War, THE OREGONIAN, Jan. 16, 2007, at CO! (outlining the weak cvidence
against detainee Adel Hamad, a charity worker).
See e.g., Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807); Goldswain's Case, (1778) 96 Eng. Rep. 711
(K.B.). While the Government has contested this account of habeas review, it mistakenly relies on
post-conviction habeas cases where the petitioner already had a full trial of the charges against him.
Government's Supplemental Brief Addressing the Military Commissions Act, supra note 17, at 23-
Sara Wood, DoD Releases Military Commissions Manual, AM. FORCES INFO. SERVICE, Jan. 18,
2007, available at http://www.defenselink.mil/news/NewsArticle.aspx?ID=2745. We put aside
questions about the fairness of the procedures governing trials by military commission, which will be
addressed in a subsequent report.
specifically established by DoD to review the status of Guantánamo detainees.29 As provided by
the DTA, the final decisions of these CSRTs are subject to a limited review in the D.C. Circuit.
As detailed below, this scheme provides nothing approaching due process or the searching inquiry into the legal and factual bases of a detention available under habcas corpus.3
Finally, nothing in the MCA or any other law or regulation entitles a detaince to receive even the limited review provided by a CSRT. Hence, it is possible that some detainees may be imprisoned indefinitely without any review whatsoever.
CSRTS were established by the DoD in response to the Supreme Court's 2004 decisions in Rasul and Hamdi.32 Rasul construed the habeas corpus statute, as it then read, to provide jurisdiction over habeas petitions from Guantánamo detainees.” Hamdi held that a U.S. citizen
Neither of these procedures is available to an estimated 14,000 detainees in Iraq, Afghanistan, and
other locations outside the United States, as the CSRT procedure is established only for Guantánamo.
Memorandum from Deputy Secretary of Defense Gordon England, Implementation of Combatant
Status Review Tribunal Procedures for Enemy Combatants Detained at U.S. Naval Base Guantánamo
Bay, Cuba (Jul. 14, 2006), available at http://www.defenselink.mil/news/Aug2006/
d20060809CSRTProcedures.pdf (hereinafter CSRT Implementation Memo). In Al-Marri, the
government claims that it would give a CSRT to an alien resident of the United States, alleged to be
an enemy combatant and who is detained in the United States. See Respondent-Appellee's Motion to
Dismiss for Lack of Jurisdiction and Proposed Briefing Schedule, Al-Marri v. Wright, No. 06-7427,
at 4-5 (4th Cir. Nov. 13, 2006). It appears, however, that to provide the CSRT, he would need to be
removed to Guantánamo. Moreover, the government also claims in Al-Marri that an alien can fall
within the habeas-stripping provisions merely on the determination of the President that he can be
detained as an "enemy combatant.” Id. If that view were acccpted, no judicial review whatsoever
would be available to Al-Mamri, as the D.C. Circuit review is limited to review of final CSRT
decisions. See DTA § 1005(e)(2).
See Supplemental Brief of Amici Curiae of British and American Constitutional Scholars Listed
Herein in Support of Petitioners Addressing Section 1005 of the Detaince Treatment Act of 2005,
Boumediene & Al Odah, Nos. 05-5062 & 05-5064, at 12 (D.C. Cir. Jan. 23, 2006).
542 U.S. 466 (2004).
542 U.S. 507 (2004).
Rasul, 542 U.S. at 481. In Rasul, the Supreme Court was construing the habeas statute, but its
analysis suggests that detainees at Guantánamo also have a constitutional right to babeas. See id. at
482 (noting that at common law "the reach of the writ depcnded not on formal notions of territorial
sovereignty, but rather on the practical question of 'the extent and nature of the jurisdiction or
dominion exercised in fact by the Crown."" (quoting Ex parte Mwenya, (1960) I Q.B. 241, 303
(C.A.) (Lord Evershed, M.R.)); see also id. at 483, n. 15 ("[P]etitioners' allegations...
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