Detainee Litigation
Law / Regulations
- Authorization for Use of Military Force (2001)
- FM 27-10 Law of Land Warfare (July 1956)
- AR 190-8 Enemy POW's, Retained Personnel, Civilian Internees & Other Detainees (1997)
- FM 2-22.3 Human Intelligence Collector Operations (2006)
- Military Judges ' Benchbook for Trial of Enemy Prisoners of War (2004)
Afghanistan:
-
Detainee Review Procedures at Bagram Theater Internment Facility (BTIF) (2009)
Guantanamo Bay:
- Order Establishing Combatant Status Review Tribunals (2004)
- Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants (2006)
- Implementation of Administrative Review Procedures for Enemy Combatants (2006)
- Diagram of Administrative Review Procedures (2006)
- Guantanamo Detainee Processes (2007)
- Administrative Review Board Summary (2006)
- Combatant Status Review Tribunal Summary (2007)
- Procedure for Review of "New Evidence" Relating to Enemy Combatant Status (2007)
- In re Guantanamo Bay Detainee Litigation, Memorandum Regarding the Government's Detention Authority Relative to Detainees held at Guantanamo Bay (2009)
- In re Guantanamo Bay Detainee Litigation, Declaration of Attorney General Holder (2009)
Reports
- Closing the Guantanamo Detention Center: Legal Issues, Congressional Research Service (2009)
- Statement on Commission Relating to Detention, Treatment, and Transfer of Detainees, Coalition of Nongovernmental Organizations and Individuals (2009)
- Intelligence Community Legal Reference Book, Office of the Director of National Security (2009)
- Detainees at Guantanamo Bay, Congressional Research Service (2005)
-
Treatment of "Battlefield Detainees" in the War on Terrorism, Congressional Research Service (2002)
Significant Cases
- Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866) . The Supreme Court held that military commissions could not try U.S. citizens where civil courts were open and functioning.
- Ex parte Quirin, 317 U.S. 1 (1942). The Supreme Court upheld the jurisdiction of a military tribunal over German saboteurs.
- Korematsu v. United States, 323 U.S. 214 (1944). The Supreme Court upheld President Roosevelt's order to hold Japanese Americans in internment camps.
- Johnson v. Eisentrager, 339 U.S. 763 (1950). The Supreme Court held that U.S. courts did not have jurisdiction over Germans held in a U.S.-administered German prison after being convicted of war crimes in a military tribunal held in China.
- Hamdi v. Rumsfeld, 542 U.S. 507 (2004). The Supreme Court recognized the power to detain under the Authorization to Use Military Force, but ruled that detainees who are U.S. citizens must have the ability to challenge their detention.
- Rasul v. Bush, 542 U.S. 466 (2004). The Supreme Court ruled that detainees held at Guantanamo Bay could challenge their detention in the U.S. court system.
- Rumsfeld v. Padilla, 542 U.S. 426 (2004). The Supreme Court found a jurisdictional flaw in the habeas petition filed by Padilla. The Court declined to rule upon the issue of the President’s authority to detain Padilla because the proper respondent should have been Padilla’s immediate custodian.
- Padilla v. Hanft, 423 F. 3d 386 (4th Circuit). The 4th Cirucit panel held that the President possesses the authority to detain militarily a U.S. citizen who is closely associated with al-Qaeda.
- Al-Marri v. Wright, 487 F.3d 160 (4th Circuit 2007). A three judge panel in the Fourth cirucit ruled the indefinite military detention of al-Marri must cease.
- Al-Marri v. Pucciarelli, 534 F.3d 213 (4th Circuit 2008). In an en banc decision, the Fourth Circuit overruled the decision in Al-Marri v. Wright.
- Al Maqaleh v. Gates, 604 F.Supp.2d 205 (D.D.C. 2009). Judge Bates relied on the Boumediene holding and factors to find that Bagram detainees who are not Afghan citizens, who were not captured in Afghanistan, and who have been held for an unreasonable amount of time without adequate process may invoke the privilege of habeas corpus.
- Boumediene v. Bush, 533 U.S. __ (2008). The Court held that the right of habeas corpus review under the U.S. Constitution applies to detainees held at Guantanamo Bay.