May 05 2009
THE FUTURE OF DETAINEES IN THE GLOBAL WAR
ON TERROR: A U.S. POLICY PERSPECTIVE
Saxby Chambliss *
Published by the University of Richmond Law Review
43 Univ. Rich. L. Rev. 821.
On September 11, 2001, the terrorist network Al-Qaeda launched a coordinated attack against the economic and political capitals of the United States. Three domestic airplanes were hijacked by Al-Qaeda members and systematically flown into the World Trade Center towers in New York City and the Pentagon in Washington, D.C. A fourth plane, due to the courageousness of the passengers who took control of the cockpit from the terrorists, crashed in a field in Pennsylvania, sparing the U.S. Capitol, or possibly the White House, from similar destruction. The result of these terrorist attacks was the largest single day death toll from foreign attack on American soil, killing over 3,000 innocent civilians.1
While Americans and the international community mourned the losses caused by the terrorist attacks, the U.S. government was on the defensive. Within days of the attack, on September 14, 2001, President Bush declared a national emergency.2 The same day, Congress passed the Authorization for Use of Military Force (“AUMF”), granting the President authority to defend the nation against attack and to combat Al-Qaeda.3 Shortly thereafter, on October 7, 2001, the United States responded to these attacks by initiating an armed conflict in Afghanistan, targeting Al-Qaeda and the sanctuary it received from the Taliban.4
Since the early days following 9/11, Congress has crafted, and the President has signed, a variety of legislation to address legal issues which arose from the ongoing Global War on Terrorism (“GWOT”).5 In particular, in the Detainee Treatment Act (“DTA”)6 and the Military Commissions Act (“MCA”),7 Congress created the “most generous set of procedural protections” ever granted to enemy combatants detained by the United States.8 On June 12, 2008, the Supreme Court issued a 5-4 opinion in Boumediene v. Bush, striking down portions of those generous procedural protections, and holding, for the first time in our nation’s history, that detainees in an ongoing conflict and held outside of the United States at the U.S. Naval Base in Guantánamo Bay, Cuba, (“GTMO”) have the right to appeal their detentions under the U.S. Constitution.9
As a result of Boumediene, terrorists, detained by the United States for aiding Al-Qaeda and committing atrocities against our soldiers on the battlefield, may now enjoy many of the same constitutional privileges as our own citizens. In some cases, they may now receive even more protections than our own citizens enjoy in a criminal context.10 In reaching this stunning conclusion, the Court ignored numerous clear actions by Congress and the President and instead decided to move our detainee and national security policies into the federal courts. The Court also ignored the fact that, despite having every opportunity to challenge their detention through Combatant Status Review Tribunals (“CSRTs”), many of the detainees at GTMO—including Boumediene— actively refused to participate in a CSRT, and not one had completed successfully the appeals process Congress provided for in the DTA.11
In the aftermath of the Supreme Court’s decision in Boumediene, Congress and the new administration must re-evaluate our detainee processes and move U.S. detainee policy back under the purview of the political branches. Ironically, and despite its holding, the Court stated that
[i]n considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches. Unlike the President and some designated Members of Congress, neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people.12
As the Court recognized, the political branches are better suited to understand issues of national security. For example, the members of the Senate Select Committee on Intelligence are well aware of the national security threats that face our nation and have been entrusted by their colleagues to consider fully those threats as new policies in the GWOT are debated.
Over the past few years, Congress has responded quickly to address those court rulings that apply to detainees. With the de cision in Boumediene, Congress will have to do so again. There are many policy and national security considerations with regard to the legal rights the United States should afford to detainees in the GWOT that must be examined and addressed swiftly before courts are allowed to develop further U.S. policy to our nation’s detriment. This commentary will lay out a brief history of congressional action on detainee policy, as well as discuss potential action for the political branches to consider in the near future.
II. CONGRESSIONAL HISTORY ON THE DETENTION OF TERRORISTS
A. Authorization for the Global War on Terrorism
The attacks of September 11, 2001 undoubtedly required a massive and novel response from the United States. Faced with a transnational enemy who successfully attacked the United States or its interests on more than one occasion, and who threatened to do so again, the response was meant to incapacitate Al-Qaeda.
When Congress passed the AUMF, it condemned the terrorist attacks as treacherous violence and cited the necessity for the United States to exercise its right to self-defense.13 The AUMF granted the President authority
to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.14
In passing the AUMF, Congress created specific statutory authority to combat the perpetrators of the September 11th attacks, Al- Qaeda, and those who support them. This authority, as well as authority provided under the laws of war, gave the United States the right to detain enemy combatants.15
B. Combatant Status Review Tribunals
In 2004, the Supreme Court decided Hamdi v. Rumsfeld, holding, in a plurality opinion, that the President was authorized to detain enemy combatants for the duration of hostilities “based on longstanding law-of-war principles.”16 In Hamdi, the Court recognized that the President’s right to detain those enemies who fought against the United States in Afghanistan was “so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress . . . authorized the President to use.”17 The Court also held that Congress authorized the President to detain persons designated as enemy combatants, including U.S. citizens such as Hamdi, without a criminal trial.18 Although the Court rejected the detainee’s petition for a writ of habeas corpus, it determined that detention was permitted so long as an enemy combatant had a process to challenge that designation.19
Largely as a result of the Court’s due process requirements from Hamdi, the Department of Defense (“DOD”) created the CSRT process to determine a detainee’s status as an enemy combatant and to provide a mechanism for a detainee to challenge an enemy combatant designation.20 The CSRTs are administrative rather than adversarial, but each detainee has the opportunity to present “reasonably available” evidence and witnesses to a panel of three commissioned officers who will determine whether the detainee meets the criteria for designation as an enemy combatant.21 The DOD defines “enemy combatant” as “an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners[,] . . . includ[ing] any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”22 Each detainee is provided a military officer who serves as a personal representative, but not as an advocate.23 The personal representative may, however, view classified evidence, summarize it to the detainee, and comment on it to the tribunal to aid in its determination.24 Each detainee may elect to participate in the hearing or remain silent.25
Because of the hostile environments in which detainees have been captured, the CSRTs are not bound by criminal rules of evidence.26 Rather, the government’s evidence is presumed to be genuine and accurate.27 For example, evidentiary limits on admitting hearsay are tempered by practical considerations.28 The CSRT process recognizes that it makes no sense in the middle of a war to compel soldiers fighting in Afghanistan or Iraq to leave the frontlines just to testify about statements or evidence collection.
Although the standard used to determine a detainee’s status as an enemy combatant is a “preponderance of the evidence” standard, the process as a whole provides reasonable procedural safeguards to ensure a fair proceeding.29 For example, the government is still required to present mitigating evidence and each detainee may receive unclassified summaries of the relevant evidence against him.30
C. The Detainee Treatment Act
Congress also took note of the Court’s decision in Hamdi and began crafting legislation to address the Supreme Court’s concerns. Before any legislation passed, however, the Supreme Court held that the federal statutory habeas corpus provision extended statutory habeas jurisdiction to GTMO because GTMO was not outside the sovereignty of the United States.31 As a result of this second Supreme Court decision, Congress passed and the President signed the DTA on December 30, 2005.32 The DTA included the Graham-Levin Amendment which eliminated the federal courts’ statutory jurisdiction over habeas corpus claims by aliens detained at GTMO, but provided for an appeal of a status determination made by the CSRTs.33 Specifically, the D.C. Circuit Court of Appeals (“D.C. Circuit”) was given exclusive jurisdiction to hear appeals of any status determination to ensure that such determination was consistent with applicable DOD procedures and evidentiary standards.34
The DTA also required DOD to conduct a yearly review of the status of each prisoner.35 Additionally, the DTA required that the CSRTs “shall provide for periodic review of any new evidence that may become available relating to the enemy combatant status of a detainee.”36 In accordance with the DTA, DOD issued guidance that if new evidence arose after a CSRT determination, the Deputy Secretary of Defense would “direct that a CSRT convene to reconsider the basis of the detainee’s E[nemy] C[ombatant] status in light of the new information.”37
D. The Military Commissions Act
Following the enactment of the DTA, the Supreme Court again waded into the military detention process. In Hamdan v. Rumsfeld, the Court held that the DTA did not apply to habeas petitions filed prior to the DTA’s enactment and that there were flaws in the authority of the military commissions.38 As a result, Congress passed the MCA, which amended the DTA’s provisions regarding appellate review and habeas corpus jurisdiction.39 Congress expanded the DTA to make its review provisions the exclusive remedy for all aliens detained as enemy combatants.40 Section 7 of the MCA explicitly revoked the jurisdiction of U.S. courts to hear habeas corpus petitions by all aliens in U.S. custody held as enemy combatants, including those pending at the time of enactment.41 The statutory habeas provision, previously amended
by the DTA, was replaced by the MCA’s decree that:
(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. (2) Except as provided in paragraphs (2) [review of CSRT determinations] and (3) [review of final decisions of military commissions] of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.42
Under the MCA, therefore, appeals from a final decision by a military commission would continue to go to the D.C. Circuit but would be routed through a new appellate body, the Court of Military Commission Review (“CMCR”).43 Review of a decision by a military commission could only concern matters of law, not fact.44 Appeals could be based on inconsistencies with the procedures set forth in the MCA, or, “to the extent applicable, the Constitution or laws of the United States.”45 CSRT determinations would continue to be appealable directly to the D.C. Circuit.46
The sequence of events described above shows plainly that Congress intentionally and unequivocally stripped jurisdiction to hear habeas petitions by detainees at GTMO from the courts. There is no ambiguity in the language of the DTA and MCA—it was the desire and intent of the political branches to keep the terrorists held at GTMO out of the U.S. court system, except through the appellate processes that the two Acts lay out, and to deny them the constitutional rights that our own citizens enjoy.
III. BOUMEDIENE AND ITS IMPACT ON CURRENT POLICY
A. Boumediene History
On February 20, 2007, the D.C. Circuit in Boumediene v. Bush, upheld the MCA’s habeas-stripping provision.47 The court’s decision applied to a number of pending habeas cases, all of which involved non-U.S. nationals detained at GTMO.48 There were two main questions on appeal. First, the court considered whether Congress intended the MCA to eliminate habeas review for all alien enemy combatants—including those who had filed habeas petitions before the MCA was enacted.49 Both the majority and the dissent agreed that the plain language of the MCA prevented courts from hearing any habeas petition filed by an alien detained at GTMO, regardless of when the habeas petition was filed.50
The second, and primary question, was whether the MCA’s elimination of habeas review for detainees was consistent with the Suspension Clause of the U.S. Constitution.51 The D.C. Circuit looked at the historical scope of habeas and concluded that non-U.S. citizens held outside the United States historically did not have a right to habeas review.52 The court then found that, because Congress and the executive branch had determined explicitly that GTMO was not within the territorial jurisdiction of the United States, the detainees held at GTMO were not detained within the territorial United States.53 Thus, the MCA did not suspend habeas because there was nothing to suspend—“the Constitution does not confer rights on aliens without property or presence within the United States.”54
B. Supreme Court Decision in Boumediene
On June 12, 2008, the Supreme Court issued its opinion in Boumediene v. Bush, holding that detainees held at GTMO have the constitutional privilege of habeas corpus and that section 7 of the MCA—which stripped the courts’ jurisdiction to hear habeas claims from detainees—was unconstitutional because the procedural mechanisms in the DTA were not an adequate substitute for the writ of habeas corpus.55 The Court asserted that if Congress’s intent was to deny habeas privileges to these detainees, it must formally suspend the writ as mandated by the Suspension
Clause of the Constitution.56
The Suspension Clause states that “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”57 Although the Court held that the clear language of section 7 of the MCA strips jurisdiction from the courts and that, if the statute is valid under the Constitution, the cases must be dismissed,58 the Court found the “MCA does not purport to be a formal suspension of the writ.”59 In rejecting the idea that the CSRT process was an adequate substitute for habeas corpus relief, the Court noted that it did not allow the detainees to “challenge the President’s legal authority to detain them, contest the CSRT’s findings of fact, supplement the record on review with exculpatory evidence, and request an order of release.”60
In determining whether the Suspension Clause applied to the detainees at GTMO, the Court considered three factors:
(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.61
First, the Court found that the status of the detainees was in question because the detainees denied they were enemy combatants and because the CSRTs were inadequate, due to both the lack of counsel afforded to the detainees and the presumption of validity accorded to the government’s evidence.62 Second, the Court found that the detainees’ location at GTMO, where they were under U.S. control, should be given weight.63 Finally, the Court found few, if any, practical barriers to extending habeas to those at GTMO.64 The Court noted that to the extent practical barriers did arise, habeas “procedures likely [could] be modified to address them.”65
The Supreme Court’s decision in Boumediene was a marked departure from previous jurisprudence. In the leading case on point, Johnson v. Eisentrager, the Court refused to grant habeas rights to enemy combatants detained during World War II and later held in a prison in Allied-occupied Germany.66 The Eisentrager Court considered
(a) [that each petitioner was] an enemy alien; (b) ha[d] never been or resided in the United States, (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.67
None of these factors relied on the procedural protections afforded to the petitioners. Instead, the Court in Eisentrager examined the status and nature of the detainees and their detention.
Boumediene attempted to distinguish Eisentrager because the Eisentrager detainees had been tried and convicted already.68 Conveniently, the Court failed to recognize a key distinction between the Boumediene detainees and those in Eisentrager. Unlike in Eisentrager, where the war had ended, the United States still is engaged in military action against the very enemies associated with the GTMO detainees. If the Court had considered this distinction, along with the other factors in Eisentrager, it might have concluded that the detainees at GTMO more closely resemble prisoners of an ongoing war whose detention would be undeniably justified.69 It is ironic that the Court found GTMO to be within the de facto control of the United States,70 yet complained that the Court of Appeals could not instruct the release of a detainee upon finding unlawful detention.71 If GTMO is under the jurisdiction of the courts, then surely a court could make and enforce such an order, if only in a legal sense.
In his dissent in Boumediene, Chief Justice Roberts pointed out that the Court in Hamdi “explained that the Constitution guaranteed an American citizen challenging his detention as an enemy combatant the right to ‘notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.’”72 Further, Roberts argued the Court in Hamdi thought this could be accomplished “by an appropriately authorized and properly constituted military tribunal.”73 As Chief Justice Roberts noted, “surely the Due Process Clause does not afford non-citizens in such circumstances greater protection than citizens are due.”74
Despite the fact that the D.C. Circuit found it unnecessary to address whether the DTA provided adequate substitute procedures for habeas, the Supreme Court decided to rule on this issue on first impression. The Court justified this departure by concluding that habeas “entitle[d] the prisoner to a meaningful opportunity to demonstrate that he [was] being held pursuant to ‘the erroneous application or interpretation’ of relevant law”75 and that a “court must have the power to order the conditional release of an individual unlawfully detained.”76 According to the opinion, these were not the only requirements of the privilege of habeas and more might be required depending on the circumstances.77 However, as Chief Justice Roberts pointed out in his dissent, the majority failed to define what due process rights the detainees did possess and whether the DTA satisfied them because the Court did not allow the D.C. Circuit an opportunity to rule on them.78
The DTA allows the D.C. Circuit to review whether the standards and procedures used by the DOD to determine a detainee’s enemy combatant status are lawful under a preponderance of the evidence, with a rebuttable presumption in favor of the government. 79 Yet, the Boumediene Court held this process deficient because a detainee is not able to challenge findings of fact or supplement the record.80 If the CSRT’s determinations were final judgments, statute and judicial precedents suggests the review should be limited to the record, with judicial discretion to hold additional evidentiary hearings.81 Additionally, even in pre-trial detention hearings for individuals charged with the most serious criminal offenses, “[t]he rules concerning admissibility of evidence . . . do not apply to the presentation and consideration of information at the hearing.”82
IV. POTENTIAL CONGRESSIONAL ACTION
A. The Aftermath of Boumediene
Immediately following the Court’s decision in Boumediene, additional detainees filed habeas petitions in the district courts.83 Courts have moved quickly to schedule hearings for them, as instructed by the Boumediene decision.84 The decision in Boumediene left open the possibility that the government would be required to defend challenges on two fronts: (1) in habeas proceedings in the district courts and (2) against those detainees who follow the D.C. Circuit appeals process provided in the DTA for any CSRT status determination.85 Recognizing this burden, the Government argued to the D.C. Circuit that the DTA provision granting the D.C. Circuit jurisdiction over CSRT determinations could not be severed from the now unconstitutional provision eliminating habeas corpus.86 Still, the Justice Department may not have the resources to defend against the habeas challenges alone.
Congress should address the many questions left unresolved by the Court, as well as provide a narrower legal framework for courts to proceed in current litigation. As Chief Justice Roberts astutely observed, “[T]he political branches crafted CSRT and D.C. Circuit review to operate together, with the goal of providing noncitizen detainees the level of collateral process Hamdi said would satisfy the due process rights of American citizens.”87 Indeed, “Congress followed the Court’s lead, only to find itself the victim of a constitutional bait and switch.”88 Given the Court’s interference in a string of detainee cases, it is not clear that any action by the political branches will be followed.
B. A Possible Solution
Remedial action by Congress does not guarantee a solution, but there are four main legislative fixes which could alleviate the burdens resulting from the Court’s opinion. First, Congress must clarify and reaffirm the President’s authority to detain individuals in the GWOT. Second, Congress must provide a stay for any habeas petition filed by those detainees who have been charged already by military commission. Third, Congress must revise the CSRT process to make it an adequate substitute for habeas. Finally, Congress must prohibit the entry or release of any detainee into the United States.
On the first point, Congress must reaffirm the President’s authority to detain enemy combatants that the courts may otherwise weaken due to the length of time which has passed since the AUMF was enacted. The President has implied authority from the AUMF to detain individuals in the GWOT, as well as inherent constitutional authority as Commander in Chief.89 In its analysis of whether or not the DTA was an adequate substitute, the Court specifically cited as inadequate the fact that it did not allow AUMF challenges to the President’s authority to detain individuals.90 The Court’s analysis raises the possibility that individuals who may have been captured in places around the world other than on the battlefield in Afghanistan could challenge the President’s authority to detain them based on the AUMF. The Court’s insistence on a detainee’s ability to challenge this authority is another example of judicial interference with the will and constitutional duty of the political branches to engage in foreign affairs and protect national security. Congress must act to clarify the political will as well as the nature of the current hostilities in which the United States is engaged.
Apparently, congressional action is needed to remind the Court of its own precedents and to make certain that the President’s constitutional power is preserved.91 Congress needs to remind the Court that its role is not to “vindicate” the President’s power; rather, it is to interpret statutes that Congress has passed.92 The Court in Boumediene reaffirmed its plurality conclusion in Hamdi that the detention of individuals captured in the GWOT “‘for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.’”93 In a strange twist of logic, the Court then tossed out Hamdi and years of other precedents by suggesting due process requires the ability to challenge the president’s authority. In the past, the Court has given great deference to the President’s authority under the Constitution to detain individuals during conflict.94 Congress needs to reaffirm that the United States is in armed conflict with Al-Qaeda, the Taliban, and all those who support them,95 because they no doubt continue to pose a threat to the United States.
Second, Congress should provide a stay for habeas petitions filed by those detainees who have been charged already by military commissions. To date, over 550 detainees have gone through the CSRTs,96 and twenty-three detainees have been charged with crimes by a military commission.97 Two of those charged have been convicted already.98 There are also about 250 additional detainees who have gone through the CSRT process and remain at GTMO.99 In contrast, 220 have filed for a writ of habeas corpus in federal court.100
The Court in Boumediene recognized that it traditionally “require[s] exhaustion of alternative remedies before a prisoner can seek federal habeas relief.”101 Yet, the Court inexplicably found that the detainees were “entitled to a prompt habeas corpus hearing” because there was “no showing that the Executive faces such onerous burdens that it cannot respond to habeas corpus actions.”102 Aside from turning years of precedent on its head, the Court’s decision placed the executive branch in the untenable position of expending precious resources to defend duplicative and simultaneous litigation from these detainees.
Although the Court held the CSRT process inadequate as a substitute for habeas, it did not find the process unconstitutional.103 Thus, according to the Court, nothing barred a detainee from requiring the executive branch to defend against habeas petitions, CSRT appeals, and military commission appeals concurrently.104 Despite this quagmire, the Court recognized—but decided to ignore—these deficiencies in the judicial system. “[W]ere it probable that the Court of Appeals could complete a prompt review of their applications [for CSRT determinations under the DTA],” the Court would be more inclined to require the exhaustion of alternative remedies.105 But to do so “would be to require additional months, if not years, of delay.”106 The Court stated this despite the fact that the detainees had “steadfastly refused to avail themselves of the [DTA’s] review mechanisms.”107 At a minimum, therefore, it makes sense that any habeas proceedings for detainees charged by military commission be stayed, pending the outcome of their CSRT appeal or a military commission appeal. This assumes, of course, that the Court will not overlook congressional intent in the future and hold any portion of the military commissions or appeals process deficient as devoid of due process rights.108
Third, Congress needs to re-examine thoroughly the CSRT process and attempt to follow the Court’s vague instructions as to what would make that process an adequate substitute for a writ of habeas corpus petition. For those detainees who have not yet been, or may never be, charged by military commission, Congress should pass legislation to increase protections for the detainees in the CSRT process, thus meeting the Court’s standard for an adequate substitute for habeas. To do this without damaging our national security, however, Congress must limit the disclosure of classified information in any court proceeding.
Unfortunately, the Court was silent on exactly what rights or processes would be adequate. The Court, however, did imply that the outcome of future cases may be different for detainees going through a different CSRT process and suggested some procedural protections which would strengthen the process.109 According to the Court, a detainee’s ability to “contest the CSRT’s findings of fact, supplement the record on review with exculpatory evidence, and request an order of release would come close” to satisfying statutory habeas corpus requirements.110 Any legislation should begin by addressing these issues, even though the Court ignored the DTA’s express allowance for “the D.C. Circuit to remand a detainee’s case for a new CSRT determination” if new evidence arose.111
The elements identified in Boumediene could be satisfied by incorporating elements from U.S. criminal law into the process, an unprecedented benefit for foreign nationals located outside the United States during a time of war. For example, the Bail Reform Act of 1966 affords the government a “rebuttable presumption” with respect to their efforts to detain a defendant prior to a trial. 112 In practice, this presumption saves the government from having to prove the competency, authenticity, and weight of the evidence supporting pre-trial detention for individuals charged with some of the most serious criminal offenses.113 Similarly, an express rebuttable presumption could be provided for the government in pursuing the continued detention of detainees at GTMO. This would usually offer a detainee some opportunity to challenge the government’s evidence before a trier of fact determines the outcome. Also, the statutory habeas provisions applicable to state and federal custody, although restricted to postjudgment hearings, presume the factual record to be correct and limit new evidence, including exculpatory, to claims that rely on
a factual predicate that could not have been previously discovered through the exercise of due diligence; and . . . the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.114
Applying these processes to the CSRT context would allow the detainee to introduce exculpatory evidence during the review process while giving substantial judicial deference to the due diligence of the government. Such deference would necessarily include an acceptance of the difficult “trial” environment that a CSRT faces. As former Attorney General Michael Mukasey so aptly observed, “this is not CSI Kandahar.”115
Finally, and of most importance, Congress needs to ensure that none of the detainees at GTMO have physical access to the United States or may be released into the United States. Although the Court in Boumediene held that one way in which the DTA was an inadequate substitute for habeas was the inability to order the release of the detainee,116 the Court disregarded the fact that hundreds of detainees have been transferred or released to date, and dozens released specifically upon a determination by the CSRT that each detainee was not an enemy combatant.117 Not one of these detainees, however, has been released into the United States. If district courts are now able to hear habeas petitions and order the release of detainees,118 any legislation Congress considers must make it clear that detainees held at GTMO will not be transferred to the United States, released into the United States, or provided with any rights that accompany being located in the United States. Al-Qaeda searches everyday for operatives who can evade our enhanced security mechanisms in its quest to commit another attack against our homeland.119 It is important to remember that most detainees held at GTMO were captured on the battlefields in Afghanistan or Iraq and were determined to be a threat to our efforts to combat terrorism; others were apprehended in other parts of the world based on the reasonable suspicion that they were connected to Al-Qaeda. Whatever their ties to terrorists groups or activities, these individuals should never be given the privilege of crossing our borders. To do so would be nothing short of an invitation for Al-Qaeda to operate inside our homeland.
C. Classified Information
Any habeas challenge will certainly require an examination of the classified intelligence and other information supporting the detainee’s connection to a terrorist organization. Congressional action clarifying the President’s authority to detain individuals, regardless of where they were captured, may assist the courts in finding that a detainee’s connections to Al-Qaeda are sufficient for his detention and may lessen the need to expose classified information in the process.120 As it stands today, however, any examination of the records used in the CSRT process may expose sensitive intelligence, particularly intelligence the United States has received from interrogations. In order to avoid the disclosure of sensitive sources and methods, courts must respect the government’s assertions and examine them, at a minimum, under a rebuttable presumption standard similar to that used in criminal bail hearings.121
How should this be accomplished? One possible legislative solution is to create a tiered process for sharing information with the detainee, such as releasing any unclassified information to the detainee and only releasing SECRET information to a cleared counsel for the detainee. If a judge requires additional information, then the government should release TOP SECRET information, and anything above that, only to the judge in camera and ex parte.
Some have complained about any effort to restrict information a detainee may see during the course of a CSRT. For years, our criminal justice system has used the Classified Information Procedures Act to protect classified information from unwarranted disclosure while ensuring that the criminal process is fair.122 No less deference to the protection of classified information should be afforded the CSRT process. These detainees are not ordinary criminals. They are terrorists––terrorists who in many cases have taken an oath to kill our citizens and destroy our country. There is no reason to ever give them access to classified information.
D. Other Concerns
Since the Court in Boumediene opened the U.S. judicial system to petitions filed by detainees, Congress should make sure that enemy combatants are not afforded due process protections that even U.S. citizens are denied. No one can reasonably argue that a non-U.S. national captured on the battlefield in Afghanistan or Iraq deserves all, or even substantial, due process protections which a U.S. citizen facing criminal prosecution would not be granted. As such, Congress should look to U.S. criminal law and allow a court to deny a writ “on the merits, notwithstanding the failure of the applicant to exhaust the remedies available” in other venues.123 Congress should also limit the number of habeas petitions detainees are allowed to file by applying current federal habeas law specifically to detainee habeas actions.124
It is crucial to our national security that the political branches of the federal government act swiftly to answer the questions Boumediene left open and define the legal boundaries for future habeas petitions in U.S. courts.125 In this ongoing GWOT, it is clear that terrorists are not reasonable actors capable of negotiating cease-fires or willing to end their attacks against innocent Americans. Osama bin Laden has made clear that Al-Qaeda believes it is the duty of all Muslims to wage jihad against the United States and its allies.126 This threat is compounded each time the United States releases a detainee from GTMO. As of the end of December 2008, of the GTMO detainees transferred from U.S. custody, there are “18 confirmed and 43 suspected of returning to the fight. So 61 in all former Guantanamo detainees are confirmed or suspected of returning to the fight.”127
Clearly cognizant of this global threat, Congress and the President over the past several years have enacted significant pieces of legislation to address terrorism. Unfortunately, and in sharp contrast to the balance of power ordained by our founders, the intentions of the political branches have been disregarded by the Judiciary. No American who values his constitutional rights should want terrorists who have been detained holding weapons, fighting for Al-Qaeda’s cause in war zones, and aiming to kill U.S. soldiers to receive the full benefit of the Constitution of the most democratic and free society in the world.
For reasons that are beyond the comprehension of many, the Supreme Court failed to recognize or appreciate the nature of the enemy who confronts us today. In one breath, the Court in Boumediene noted that “[s]ecurity depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict.”128 One would imagine the Court meant the ability to interdict any enemy who would do the United States harm. Yet, the Court continued, “[s]ecurity subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.”129 For over 200 years, these principles have guided Americans in their daily conduct and in their respect for their homeland, their values, and their government. Al-Qaeda is waging a violent war against these very same principles—principles that the Court in Boumediene took great pains to bestow upon them. With each court decision since the 9/11 terrorist attacks on our homeland, Al-Qaeda must gain more and more gratitude for our fidelity to freedom’s first principles. It is time for Congress to reclaim these first principles for the American people, not for terrorists.
* United States Senator. Senator Chambliss is the Ranking Republican Member of
the Senate Agriculture Committee and a member of the Senate Select Committee on Intelligence
and the Senate Armed Services Committee.
1. See Bob Herbert, Vital Statistics, N.Y. TIMES, Oct. 31, 2002, at A27; see also Richard
Rhodes, What Terror Keeps Teaching Us, N.Y. TIMES, Sept. 23, 2001, § 6 (Magazine),
at 91 (comparing the attack on Pearl Harbor to the attack on September 11, 2001).
2. Proclamation No. 7463, 3 C.F.R. 263 (2001), reprinted in 50 U.S.C. § 1621 (2006).
3. See 147 CONG. REC. S17045 (daily ed. Sept. 14, 2001); 147 CONG. REC. H17110,
17,156 (daily ed. Sept. 14, 2001).
4. See Afghanistan Wakes After Night of Intense Bombings, CNN, Oct. 7, 2001, http://
5. See, e.g., Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No.
108-458, 118 Stat. 3638 (codified as amended in scattered sections of the U.S.C.); Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (codified
as amended in scattered sections of the U.S.C.); Foreign Intelligence Surveillance Act of
1978 Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436 (to be codified at scattered
sections of 50 U.S.C.); Protect America Act of 2007, Pub. L. No. 110-55, 121 Stat. 552
(to be codified at scattered sections of 50 U.S.C.).
6. Detainee Treatment Act of 2005, Pub. L. No. 109-148, div. A, tit. X, 119 Stat. 2739
(codified as amended at 10 U.S.C. § 801 note, 28 U.S.C. § 2441, and 42 U.S.C. § 2000dd
and note (2006)).
7. Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (codified as
amended in scattered sections of 10, 18, 28, and 42 U.S.C.).
8. Boumediene v. Bush, 128 S. Ct. 2229, 2279 (2008) (Roberts, C.J., dissenting).
9. Id. at 2262 (majority opinion).
10. Unlike U.S. citizens, terrorists can file a writ of habeas corpus without exhausting
Alternative remedies. See id. at 2274 (requiring “exhaustion of alternative remedies before
a prisoner can seek federal habeas relief”); Schlesinger v. Councilman, 420 U.S. 738, 758
(1975); Ex parte Royall, 117 U.S. 241, 253 (1886).
11. As of November 24, 2008, 193 petitions had been filed with the D.C. Circuit Court
of Appeals under the appeals provision of the DTA, though several had already been dismissed
by that time. Letter from Joseph A. Benkert, Assistant Sec’y of Def., Dep’t of Def.,
to author (Nov. 24, 2008) (on file with the author) [hereinafter Benkert Letter]. The Boumediene
ruling left the future of DTA cases uncertain because of potential jurisdictional
issues in the Court of Appeals. Id. On January 9, 2009, the D.C. Circuit ruled that the
provision in the DTA granting that court subject matter jurisdiction over CSRT appeals
could not be severed from the provision of the MCA that Boumediene declared unconstitutional.
See Bismullah v. Gates, No. 06-1197, slip op. at 2–3 (D.C. Cir. Jan. 9, 2009). Therefore,
the D.C. Circuit no longer had jurisdiction to hear appeals from CSRT determinations.
12. Boumediene, 128 S. Ct. at 2276–77 (internal citation omitted).
13. Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001)
(codified at 50 U.S.C. § 1541 note (2006)).
15. See Geneva Convention Relative to the Treatment of Prisoners of War art. 4(A),
opened for signature Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.
16. 542 U.S. 507, 521 (2004) (O’Connor, J., plurality opinion).
17. Id. at 518.
18. See id. at 519.
19. See id. at 533.
20. See Memorandum from Paul Wolfowitz, Deputy Sec’y of Def., to the Sec’y of the
Navy, Order Establishing Combatant Status Review Tribunal (July 7, 2004), available at
21. See id. at (c), (e), (g)(8)–(12).
22. Id. at (a).
23. See id. at (6).
25. Id. at (g)(10)–(11).
26. See id. at (g)(9).
27. Id. at (g)(9) and (g)(12).
28. Id. at (g)(9).
29. See id. at (g)(12).
30. See id. at (c).
31. See Rasul v. Bush, 542 U.S. 466, 473 (2004).
32. Detainee Treatment Act of 2005, Pub. L. No. 109-148, div. A, tit. X, 119 Stat. 2739
(codified as amended at 10 U.S.C. § 801, 28 U.S.C. § 2241, and 42 U.S.C. § 2000dd and
33. 151 CONG. REC. S12667 (daily ed. Nov. 10, 2005) (introduced by Sen. Graham,
passed by roll call vote, 49-42) (amended by SA2524, 151 CONG. REC. S12771 (daily ed.
Nov. 14, 2005)).
34. See Detainee Treatment Act of 2005 § 1005(e)(2), 119 Stat. at 2742.
35. Id. at § 1005(d).
36. Id. at § 1005(a)(3).
37. Memorandum of Frank Sweigart, Dir. of the Office for the Admin. Review of the
Det. of Enemy Combatants, Dep’t of Def., Procedure for Review of “New Evidence” Relating
to Enemy Combatant (EC) Status, Instruction 5421.1 (May 7, 2007), available at
38. See Hamdan v. Rumsfeld, 548 U.S. 557, 574–77 (2006).
39. Military Commissions Act of 2006, Pub. L. No. 109-366 § 3(a), 7, 120 Stat. 2600,
2622, 2635–36 (codified as amended at 10 U.S.C. § 950g, 28 U.S.C. § 2241 (2006)).
40. Id. § 7, 120 Stat. at 2635–36 (codified as amended at 28 U.S.C. § 2241 (2006)).
41. Id. The Court ruled section 7 unconstitutional in Boumediene. Boumediene v.
Bush, 128 S. Ct. 2229, 2274 (2008).
42. 28 U.S.C. § 2241(e) (2006).
43. 10 U.S.C. § 950f (2006).
44. Id. § 950g(b).
45. Id. § 950g(c).
46. Detainee Treatment Act of 2005, Pub. L. No. 109-148, div. A, tit. X, § 1005(e)(2),
119 Stat. 2739, 2742 (codified at 10 U.S.C. § 801 note (2006)).
47. Boumediene v. Bush, 476 F.3d 981, 988–92 (D.C. Cir. 2007), rev’d, 128 S. Ct. 2229
48. See id. at 904.
49. Id. at 986.
50. Id. at 986–88; id. at 994 (Rogers, J., dissenting).
51. Id. at 988.
52. Id. at 988–92.
53. Id. at 992.
54. Id. at 991.
55. See Boumediene v. Bush, 128 S. Ct. 2229, 2240 (2008).
56. See id. at 2262 (“If the privilege of habeas corpus is to be denied to the detainees
now before us, Congress must act in accordance with the requirements of the Suspension
57. U.S. CONST. art. I, § 9, cl. 2.
58. Boumediene, 128 S. Ct. at 2242.
59. Id. at 2262.
60. See id. at 2274.
61. Id. at 2259.
62. Id. at 2259–60.
63. Id. at 2260–61.
64. Id. at 2261–62.
65. Id. at 2262.
66. 339 U.S. 763, 766, 781 (1950).
67. Id. at 777.
68. Boumediene, 128 S. Ct. at 2259–60.
69. The Court in Boumediene discussed the threat faced in post-World War II Germany
and recognized that American forces “faced potential security threats from a defeated
enemy. . . . [and] the Court was right to be concerned about judicial interference with the
military’s efforts to contain ‘enemy elements, guerilla fighters, and were-wolves.’” Id. at
2261 (quoting Eisentrager, 339 U.S. at 784). This discussion ignores the reality of the
threat the U.S., and in particular U.S. armed forces, face around the world from Al-Qaeda,
and instead focuses solely on the general security of the U.S. military base GTMO.
70. Id. at 2253.
71. Id. at 2271.
72. Id. at 2281 (Roberts, C.J., dissenting) (quoting Hamdi v. Rumsfeld, 542 U.S. 507,
73. Id. (quoting Hamdi, 542 U.S. at 538).
75. Id. at 2266 (majority opinion) (quoting Immigration and Naturalization Serv. v.
St. Cyr, 533 U.S. 289, 302 (2001)).
78. See id. at 2279–80 (Roberts, C.J., dissenting).
79. Id. at 2272 (majority opinion).
80. See id. at 2270.
81. See 28 U.S.C. §§ 2254(e)–(f), 2255 (2006).
82. 18 U.S.C. § 3142(f) (2006).
83. See Michael John Garcia, Congressional Research Service, BOUMEDIENE V. BUSH:
GUANTANAMO DETAINEES’ RIGHT TO HABEAS CORPUS 9 (2008), available at http://fpc.state.
84. There are 220 habeas petitions pending before the D.C. District Circuit Courts.
Benkert Letter, supra note 11.
85. See Boumediene v. Bush, 128 S. Ct. 2229, 2275 (2008) (“[T]he petitioners in these
cases need not exhaust the review procedures in the Court of Appeals before proceeding
with their habeas actions in the District Court.”).
86. See Bismullah v. Gates, No. 06-1197, slip op. at 2–3 (D.C. Cir. Jan. 9, 2009).
87. Boumediene, 128 S. Ct. at 2286 (Roberts, C.J., dissenting).
88. Id. at 2285.
89. See U.S. CONST. art. II, § 2, cl. 1.
90. Boumediene, 128 S. Ct. at 2271–72 (“Whether the President has such authority
turns on whether the AUMF authorizes—and the Constitution permits—the indefinite
detention of ‘enemy combatants’ as the Department of Defense defines that term.”).
91. See Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579, 635
(1952) (Jackson, J., concurring) (the power of the president, with congressional acquiescence,
is at its “maximum” because “it includes all that he possesses in his own right plus
all that Congress can delegate”); id. at 637 (an act “executed by the President pursuant to
an Act of Congress would be supported by the strongest of presumptions and the widest
latitude of judicial interpretation, and the burden of persuasion would rest heavily upon
any who might attack it.”).
92. See Boumediene, 126 S. Ct. at 2277 (“On the contrary, the exercise of [the] powers
[of the Commander in Chief] is vindicated, not eroded, when confirmed by the Judicial
93. Id. at 2240–41 (quoting Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004)); see also id.
at 2277 (“The law must accord the Executive substantial authority to apprehend and detain
those who pose a real danger to our security.”).
94. See Hamdi, 542 U.S. at 518 (“The capture and detention of lawful combatants and
the capture, detention, and trial of unlawful combatants, by ‘universal agreement and
practice,’ are ‘important incident[s] of war.’”) (citing Ex Parte Quirin, 317 U.S. 1, 28, 30
95. The term “support” is used as commonly known: “to provide for . . . tolerate . . .
[give] assistance.” RANDOM HOUSE WEBSTER’S COLLEGE DICTIONARY 1295 (2d ed. 1997).
Today, Al-Qaeda has support from a number of associated terrorist organizations globally,
making it difficult to prove clear and convincing connections to the core of Al-Qaeda. See
NATIONAL INTELLIGENCE COUNCIL, THE TERRORIST THREAT TO THE U.S. HOMELAND, July
2007, available at http://www.dni.gov/press_releases/20070717_release.pdf [hereinafter
NIC, TERRORIST THREAT] (“We assess that al-Qa’ida will continue to enhance its capabilities
to attack the Homeland through greater cooperation with regional terrorist groups.”).
96. DEPARTMENT OF DEFENSE, LIST OF DETAINEES WHO WENT THROUGH COMPLETE
CSRT PROCESS, http://www.dod.mil/pubs/foi/detainees/detainee_list.pdf
97. E-mail from Anonymous Department of Defense Official to Jennifer Wagner, Professional
Staff Member for the Senate Select Committee on Intelligence (Oct. 20, 2008,
16:52 EST) (on file with author).
98. Press Release, U.S. Dep’t of Def., Detainee Convicted of Terrorism Charge at Military
Commission Trial (Nov. 3, 2008), available at http://www.defenselink.mil/releases/re
lease.aspx?releaseid=12329; Press Release, U.S. Dep’t of Def., Detainee Convicted of Terrorism
Charge at Military Commission Trial (Aug. 6, 2008), available at http://www.def
99. See Gerry J. Gilmore, Gates Cites Positive Response to Pending Guantanamo Closure,
AM. FORCES PRESS SERVICE, Jan. 22, 2009, http://www.defenselink.mil/news/newsar
100. Benkert Letter, supra note 11.
101. Boumediene v. Bush, 128 S. Ct. 2229, 2274 (2008); see, e.g., Schlesinger v. Councilman,
420 U.S. 738, 758 (1975); Ex parte Royall, 117 U.S. 241, 253 (1886).
102. Boumediene, 128 S. Ct. at 2275.
103. Id. (“The only law we identify as unconstitutional is MCA § 7 . . . . [B]oth the DTA
and the CSRT process remain intact.”).
104. The D.C. Circuit disagreed with the Court and held that by invalidating section 7
of the MCA, the provisions of the DTA that granted CSRT appeals jurisdiction to the D.C.
Circuit also became invalid because the provisions are inseverable. See Bismullah v.
Gates, No. 06-1197, slip op. at 2–3 (D.C. Cir. Jan. 9, 2009). Thus, the ruling in Boumediene
effectively granted what Congress had expressly eliminated and eliminated what Congress
had explicitly granted. There has not been a challenge to a military commission ruling.
105. Boumediene, 128 S. Ct. at 2275.
107. Id. at 2282 n.1 (Roberts, C.J., dissenting).
108. This also assumes that President Obama will not ignore past congressional action.
On January 22, 2009, President Obama issued an executive order requiring that all military
commissions be halted. Exec. Order No. 13,492, 74 Fed. Reg. 4897 (Jan. 22, 2009). On
January 29, 2009, a military judge denied a government motion requesting a continuance
in a military commission proceeding, stating that “Congress passes the Military Commission
Act which remains in effect. The Commission is bound by the law as it currently exists
not as it may change in the future.” U.S. v. Al-Nashiri, Case No. P-002, slip op. at para.
4(e) (Jan. 29, 2009), http://www.defenselink.mil/news/Jan2009/DelayArraignment_
MJ.pdf. On February 5, 2009, the convening authority for military commissions dropped
the charges against al-Nashiri in order to comply with President Obama’s Executive Order.
Gerry J. Gilmore, Judge Dismisses Charges Against USS Cole Suspect at Guantanamo,
AM. FORCES PRESS SERVICE, Feb. 6, 2009, www.defenselink.mil/news/newsarticle.as
109. See id. at 2275 (majority opinion) (“If and when habeas corpus jurisdiction applies,
as it does in these cases, then proper deference can be accorded to reasonable procedures
for screening and initial detention under lawful and proper conditions of confinement and
treatment for a reasonable period of time.”).
110. Id. at 2274.
111. Id. at 2289 (Roberts, C.J., dissenting).
112. See 18 U.S.C. § 3142(e) (2006).
113. See id. §§ 3142(e), 3142(f)(1).
114. 28 U.S.C. § 2254(e)(2) (2006).
115. Michael Mukasey, U.S. Attorney Gen., Address at the American Enterprise Institute
for Public Policy Research (July 21, 2008), available at http://www.usdoj.gov/opa/pr/
116. See supra note 71 and accompanying text.
117. Over 500 detainees have been transferred or released from GTMO since 2002. See
Press Release, Dep’t of Def., Detainee Transfer Announced (Dec. 16, 2008), available at
http://www.defenselink.mil/Releases/Release.aspx?ReleaseID=12394. Of those, forty-two
have been released as a result of being designated no longer enemy combatants. See Benkert
Letter, supra note 11; E-mail from Anonymous Department of Defense Official to
Jennifer Wagner, Professional Staff Member for the Senate Select Committee on Intelligence
(Feb 3., 2009, 18:02 EST) (on file with author).
118. On February 18, 2009, the D.C. Circuit reversed a district court ruling ordering
the government to bring seventeen GTMO detainees, who had filed habeas petitions, to
the United States and release them. Kiyemba v. Obama, 08-5424, slip op. at 3–4, 18 (D.C.
Cir. Feb. 18, 2009). The court aptly points out that the right to admit an alien into the
United States rests solely with the political branches. Id. at 7 (“With respect to the exclusive
power of the political branches in this area, there is, as the Supreme Court stated in
Galvan, ‘not merely a page of history . . . but a whole volume.’”) (citing Galvan v. Press,
347 U.S. 522, 531 (1954)). However, the case does not address the ability of the courts to
order the release of these detainees into the physical United States if President Obama
transfers them to U.S. territory, even under limited or no immigration status.
119. See NIC, TERRORIST THREAT, supra note 95 (“Although we have discovered only a
handful of individuals in the United States with ties to al-Qa’ida senior leadership since
9/11, we judge that al-Qa’ida will intensify its efforts to put operatives here.”).
120. See Boumediene v. Bush, 126 S. Ct. 2229, 2276 (2008) (“Another of Congress’ reasons
for vesting exclusive jurisdiction in the Court of Appeals, perhaps, was to avoid the
widespread dissemination of classified information. . . . We make no attempt to anticipate
all of the evidentiary and access-to-counsel issues that will arise during the course of the
detainees’ habeas corpus proceedings. We recognize, however, that the Government has a
legitimate interest in protecting sources and methods of intelligence gathering . . . .