Editing Unlawful combatant (section)

===United States===
Two separate issues to be determined in evaluating the category "unlawful combatant" as applied by the government of the United States. One issue is whether such a category can exist without violating the Geneva Conventions, and another issue is, if such a category exists, what steps the US executive branch must take to comply with [[municipal law]]s as interpreted by the judicial branch of the federal government.

====1942 Quirin case====
The term ''unlawful combatant'' has been used for the past century in legal literature, military manuals and case law.<ref name="icrc_dorman" /> The term "unlawful combatants" was first used in U.S. municipal law in a 1942 [[United States Supreme Court]] decision in the case ''[[Ex parte Quirin]]''.<ref>[http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0317_0001_ZS.html Ex Parte Quirin -n1- (Nos. 1-7CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA)] or [http://www.agh-attorneys.com/4_ex_parte_quirin.htm Ex Parte Quirin] {{webarchive|url=https://web.archive.org/web/20060223094221/http://www.agh-attorneys.com/4_ex_parte_quirin.htm |date=23 February 2006}} or [http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/quirin.html EX PARTE QUIRIN] {{webarchive|url=https://web.archive.org/web/20051219141121/http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/quirin.html |date=19 December 2005 }}</ref> In that case, the Supreme Court upheld the jurisdiction of a [[Military tribunals in the United States|US military tribunal]] over the trial of eight German [[sabotage|saboteurs]] in the US during [[World War II]]:

{{Blockquote|By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. '''Unlawful combatants''' are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an [[enemy combatant]] who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.}}

The validity of the case as basis for denying prisoners in the [[War on Terrorism]] the protection of the Geneva Conventions has been disputed.<ref>[http://www.prospect.org/print/V13/1/fletcher-g.html War and the Constitution] {{Webarchive|url=https://web.archive.org/web/20060212200408/http://www.prospect.org/print/V13/1/fletcher-g.html |date=12 February 2006 }} by George P. Fletcher in [[The American Prospect]] Issue Date: 1.1.02 or [http://www.law.fsu.edu/faculty/2001-2002workshops/fletcher.pdf War and the Constitution] {{Webarchive|url=https://web.archive.org/web/20060218001844/http://www.law.fsu.edu/faculty/2001-2002workshops/fletcher.pdf |date=18 February 2006 }} and the response [http://www.prospect.org/web/page.ww?section=root&name=ViewWeb&articleId=618 The Military Tribunal Debate] {{Webarchive|url=https://web.archive.org/web/20050428024611/http://www.prospect.org/web/page.ww?section=root&name=ViewWeb&articleId=618 |date=28 April 2005 }}</ref><ref>[https://www.aclu.org/safefree/detention/18471leg20040623.html Revised ACLU Interested Person's Memo Urging Congress to Reject Power to Detain Suspected Terrorists Indefinitely Without Charge, Trial or a Right to Counsel] by the [[American Civil Liberties Union]]</ref><ref>[https://web.archive.org/web/20060508135446/http://www.iap.nl.com/speeches_annual_conference_2003_washington/terrorism_and_the_rule_of_law_speech_by_nicholas_cowdery.html Terrorism and the rule of law] by Nicholas Cowdery AM [[Queen's Counsel|QC]], President, International Association of Prosecutors Director of Public Prosecutions, NSW, [[Australia]], at [[International Association of Prosecutors]] 8th Annual Conference, [[Washington, D.C.]] – 10–14 August 2003.</ref> A report by the American Bar Association on the case commented:

{{Blockquote|The Quirin case, however, does not stand for the proposition that detainees may be held incommunicado and denied access to counsel; the defendants in Quirin were able to seek review and they were represented by counsel. In Quirin, "The question for decision is whether the detention of petitioners for trial by Military Commission... is in conformity with the laws and Constitution of the United States." Quirin, 317 U.S. at 18. Since the Supreme Court has decided that even enemy aliens not lawfully within the United States are entitled to review under the circumstances of Quirin, that right could hardly be denied to U.S. citizens and other persons lawfully present in the United States, especially when held without any charges at all.|American Bar Association<ref>[http://news.findlaw.com/hdocs/docs/aba/abatskforce103rpt.pdf report by the American Bar Association] in PDF</ref>}}

Since the 1942 Quirin case, the US. signed and ratified the 1949 Geneva Conventions, which are therefore considered to be part of US federal law, in accordance with the [[Supremacy Clause]] in the Constitution of the United States.<ref>[[s:Ryuichi Shimoda et al. v. The State#II. Evaluation of the act of bombing according to municipal law]] Paragraph 2</ref> In addition, the [[US Supreme Court]] invalidated the premise, in ''[[Hamdan v. Rumsfeld]]'', by ruling that [[Geneva Conventions#Common Article 3 relating to non-international armed conflict|Common Article Three]] of the Geneva Conventions applies to detainees in the War on Terror and that the [[Guantanamo military commission|Military Commissions]] that were used to try suspects were in violation of U.S. and international law.<ref>[https://web.archive.org/web/20060718003322/http://www.msnbc.msn.com/id/13773997/site/newsweek/ The Gitmo Fallout: The fight over the Hamdan ruling heats up—as fears about its reach escalate.] By Michael Isikoff and Stuart Taylor Jr., Newsweek, 17 July 2006</ref>

Congress addressed the issues in the Military Commissions Act of 2006 so that enemy combatants and unlawful enemy combatants might be tried under military commissions; however, on 12 June 2008, the Supreme Court ruled, in ''[[Boumediene v. Bush]]'', that Guantanamo Bay captives were entitled to access the US justice system and that the military commissions constituted under the Military Commissions Act of 2006 fell short of what was required of a court under the United States constitution (see the section below for more details).

==== 2001 Presidential military order ====
In the wake of the [[September 11, 2001 attacks]], the US Congress passed a resolution known as the ''[[Authorization for Use of Military Force Against Terrorists|Authorization for Use of Military Force]]'' (AUMF) on 18 September 2001. In this, Congress invoked the [[War Powers Resolution]] and stated:

<blockquote>That the President is authorized 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 11 September 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.<ref>US Congress' joint resolution of 18 September 2001 [http://news.findlaw.com/wp/docs/terrorism/sjres23.es.html Authorization for Use of Military Force ("AUMF")]; public law 107-40, 115 Stat. 224</ref></blockquote>

Using the authorization granted to him by Congress, on 13 November 2001, [[George W. Bush|President Bush]] issued a Presidential Military Order: "[[Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism]]"<ref>President George W. Bush's Military Order of 13 November 2001: [https://georgewbush-whitehouse.archives.gov/news/releases/2001/11/print/20011113-27.html Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism]; 66 FR 57833 [http://www.law.uchicago.edu/tribunals/exec_order.html backup site] {{Webarchive|url=https://web.archive.org/web/20030404073150/http://www.law.uchicago.edu/tribunals/exec_order.html |date=4 April 2003 }}</ref> which allowed "individuals ... to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by [[Combatant Status Review Tribunal|military tribunals]]", where such individuals are members of the organization known as al Qa'ida; or has conspired or committed acts of international terrorism, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy. The order also specifies that the detainees are to be treated humanely.

The length of time for which a detention of such individuals can continue before being tried by a military tribunal is not specified in the military order. The military order uses the term "detainees" to describe the individuals detained under the military order. The U.S. administration chooses to describe the detainees held under the military order as "'''illegal enemy combatants'''".

US Secretary of Defense announced Guantanamo Bay detainees would be held as illegal enemy combatants instead of prisoners of war, permitting lack of compliance with the Geneva Conventions. The Bush administration maintained that the terrorists aren’t prisoners of war due to the distinction between unlawful combatant and lawful combatant. Despite this, the administration held that the detainees would be treated in compliance with the Geneva Convention.<ref>{{Cite journal |last=Vierucci |first=Luisa |date=1 August 2003 |title=Prisoners of War or Protected Persons qua Unlawful Combatants? The Judicial Safeguards to which Guantanamo Bay Detainees are Entitled |url=https://academic.oup.com/jicj/article-lookup/doi/10.1093/jicj/1.2.284 |access-date=2022-11-15 |journal=Journal of International Criminal Justice |volume=1 |issue=2 |pages=284–314 |doi=10.1093/jicj/1.2.284}}</ref><ref>{{Citation |last=Rabkin |first=Jeremy |title=After Guantanamo: The War Over the Geneva Convention |url=https://www.taylorfrancis.com/chapters/edit/10.4324/9781351323642-8/guantanamo-war-geneva-convention-jeremy-rabkin |work=The National Interest on International Law and Order |year=2018 |pages=63–76 |doi=10.4324/9781351323642-8 |isbn=9781351323642 |access-date=2022-11-15}}</ref>

With the [[War in Afghanistan (2001–2021)|U.S. invasion of Afghanistan]], some lawyers in the [[United States Department of Justice|Justice Department]]'s Office of Legal Counsel and in the office of [[White House]] counsel [[Alberto Gonzales]] advised President Bush that he did not have to comply with the Geneva Conventions in handling detainees in the War on Terrorism. This applied not only to members of al Qa'ida but the entire [[Taliban]], because, they argued, Afghanistan was a "failed state".<ref>[http://www.newyorker.com/printables/fact/050214fa_fact6 Outsourcing torture: The secret history of America's "extraordinary rendition" program] by [[Jane Mayer]] [[The New Yorker]] Issue of 2005-02-14 Posted 2005-02-07 Paragraph 32</ref>

Despite opposition from the U.S. [[State Department]], which warned against ignoring the Geneva Conventions, the [[George W. Bush administration|Bush administration]] thenceforth began holding such individuals captured in Afghanistan under the military order and not under the usual conditions of Prisoners of War.<ref>[http://www.newyorker.com/magazine/2005/02/14/outsourcing-torture Outsourcing torture: The secret history of America's "extraordinary rendition" program] by Jane Mayer The New Yorker Issue of 2005-02-14 Posted 2005-02-07 Paragraph 34</ref> For those U.S. citizens detained under the military order, U.S. officials, such as Vice President [[Dick Cheney]], argue that the urgency of the post-9/11 environment called for such tactics in administration's war against terrorism.

Most of the individuals detained by the U.S. military on the orders of the U.S. administration were initially captured in Afghanistan. The foreign detainees are held in the [[Guantanamo Bay detention camp]] established for the purpose at the [[Guantanamo Bay Naval Base]], [[Cuba]]. Guantanamo was chosen because, although it is under the ''de facto'' control of the United States administration, it is not a [[sovereignty|sovereign territory]] of the United States, and a previous Supreme Court ruling ''[[Johnson v. Eisentrager]]'' in 1950 had ruled that U.S. courts had no jurisdiction over enemy aliens held outside the USA.

In ''[[Rasul v. Bush]]'', the Supreme Court ruled that "the U.S. Guantanamo Bay, Cuba, Naval Base, which the United States occupies under a lease and treaty recognizing Cuba's ultimate sovereignty, but giving this country complete jurisdiction and control for so long as it does not abandon the leased areas",<ref>[http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-334 Rasul et al. v. Bush, President of the United States])</ref> and that as the United States had complete jurisdiction, the federal courts have the authority under the federal ''habeas corpus'' statute to decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay were rightfully imprisoned. This ruling largely overturned the judicial advantage for the U.S. administration of using the Naval Base that ''Johnson v. Eisentrager'' seemed to have conferred.

==== Legal challenges ====
There have been a number of legal challenges made on behalf of the detainees held in Guantanamo Bay detention camp and in other places. These include:
* On 30 July 2002, the U.S. District Court for the District of Columbia ruled in Rasul v. Bush, that it did not have jurisdiction because Guantanamo Bay Naval Base is not a [[United States territory#Dependent areas of the United States|sovereign territory]] of the United States. This decision was appealed to the D.C. Circuit Court of Appeals, which upheld the decision, (along with a related case in March 2003 – see [[Al-Odah v. United States]]). ''Rasul v. Bush'' was appealed to the United States Supreme Court on 2 September 2003.
* On 10 November 2003, the United States Supreme Court announced that it would decide on appeals by Afghan war detainees who challenge their continued incarceration at Guantanamo Bay Naval Base as being unlawful, (See [[Rasul v. Bush]]).
* On 10 January 2004, 175 members of both [[United Kingdom Parliament|houses of Parliament in the UK]] filed an ''[[amicus curiae|amici curiae]]'' brief to support the detainees' access to US jurisdiction.
* On 28 June 2004, the Supreme Court ruled in ''Rasul v. Bush'' that detainees in Guantanamo Bay Naval Base could turn to U.S. courts to challenge their confinement, but can also be held without charges or trial.
* On 7 July 2004, In response to the Supreme Court ruling, the Pentagon announced that cases would be reviewed by military tribunals, in compliance with Article 5 of the Third Geneva Convention.<ref>[http://news.bbc.co.uk/2/hi/americas/3867067.stm Q&A: US Supreme Court Guantanamo ruling], BBC 8 July 2004</ref><ref name=DOD-News>[http://www.globalsecurity.org/security/library/news/2005/01/sec-050119-dod01.htm DoD News: Combatant Status Review Tribunals Update] No. 057-05, 19 January 2005</ref>
* On 8 November 2004, a federal court halted the proceeding of Salim Ahmed Hamdan, 34, of Yemen. Hamdan was to be the first Guantanamo detainee tried before a military commission. Judge [[James Robertson (Judge)|James Robertson]] of the U.S. District Court for the District of Columbia ruled in ''Hamdan v. Rumsfeld''<ref>''Hamdan v. Rumsfeld'' [http://jurist.law.pitt.edu/gazette/2004/11/ruling-on-lawfulness-of-Guantanamo.php summary], [http://www.dcd.uscourts.gov/04-1519.pdf full text (PDF File)] {{Webarchive|url=https://web.archive.org/web/20050401133200/http://www.dcd.uscourts.gov/04-1519.pdf |date=1 April 2005 }} – U.S. District Court for the District of Columbia, presiding Judge James Robertson</ref> that no competent tribunal had found that Hamdan was not a prisoner of war under the Geneva Conventions.
* By 29 March 2005, all detainees at the Guantanamo Bay Naval Base had received hearings before Combatant Status Review Tribunals. The hearings resulted in the release of 38 detainees, and confirmed the ''enemy combatant'' status of 520 detainees.<ref name=DOD-News/> [[Reuters]] reported on 15 June 2005 only four detainees had been charged and that Joseph Margulies, one of the lawyers for the detainees said "The (reviews) are a sham ... They mock this nation's commitment to due process, and it is past time for this mockery to end".<ref>[http://www.arabnews.com/?page=4&section=0&article=65514&d=16&m=6&y=2005&pix=world.jpg&category=World Guantanamo inmates can be held 'in perpetuity'- US], Arab News, 16 June 2005. ([[Reuters]] report 15 June 2005)</ref>

[[Yaser Hamdi]] was captured in [[Afghanistan]] in November 2001. He was taken to Guantanamo Bay Naval Base, but was transferred to jails in Virginia and South Carolina after it became known that he was a U.S. citizen. On 23 September 2004, the United States Justice Department agreed to release Hamdi to [[Saudi Arabia]], where he is also a citizen, on the condition that he gave up his U.S. citizenship. The deal also bars Hamdi from visiting certain countries and to inform Saudi officials if he plans to leave the kingdom. He was a party to a Supreme Court decision ''[[Hamdi v. Rumsfeld]]'' which issued a decision on 28 June 2004, repudiating the U.S. government's unilateral assertion of executive authority to suspend the constitutional protections of individual liberty of a U.S. citizen. The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees must have the ability to challenge their detention before an impartial judge. Though no single opinion of the Court commanded a majority, eight of the nine justices of the Court agreed that the [[Executive Branch]] does not have the power to hold indefinitely a U.S. citizen without basic due process protections enforceable through judicial review.

On 8 May 2002, [[José Padilla (prisoner)|José Padilla]], also known as Abdullah al-Muhajir, was arrested by [[FBI]] agents at [[Chicago]]'s [[O'Hare International Airport]] and held as material witness on the warrant issued in [[New York (state)]] about the 2001 9/11 attacks. On 9 June 2002 President Bush issued an order to Secretary Rumsfeld to detain Padilla as an "enemy combatant". The order justified the detention by leaning on the AUMF which authorized the President to "use all necessary force against those nations, organizations, or ''persons''" and in the opinion of the administration a U.S. citizen can be an enemy combatant (this was decided by the United States Supreme Court in the case of ''Ex parte Quirin'').<ref>[http://www.law.syr.edu/academics/centers/insct/Military%20Force%20-%20Padilla.asp Authorization for Use of Military Force: Padilla v. Bush: Jose Padilla under the Joint Resolution] {{webarchive|url=https://web.archive.org/web/20090203134623/http://www.law.syr.edu/academics/centers/insct/Military%20Force%20-%20Padilla.asp |date=3 February 2009 }} The Syracuse Journal of International Law and Commerce, issued by the [[Syracuse University College of Law]]</ref> Padilla is being detained in [[Miami]] and is accused of [[providing material support for terrorism]].
* The 13 November 2001, Military Order, mentioned above, exempts U.S. citizens from trial by military tribunals to determine if they are unlawful combatants, which indicates that Padilla and ''Yaser Hamdi'' would end up in the civilian criminal justice system, as happened with [[John Walker Lindh]].
* On 18 December 2003, the Second Circuit Court of Appeals declared that the Bush Administration lacked the authority to detain a U.S. citizen arrested on U.S. soil as an "illegal enemy combatant" without clear congressional authorization (per {{usc|18|4001}}(a)); it consequently ordered the government to release Padilla from military custody within thirty days.<ref>[http://www.commondreams.org/headlines03/1218-10.htm Appeals Court Says Bush Can't Hold U.S. Citizen] {{Webarchive|url=https://web.archive.org/web/20140122053133/http://www.commondreams.org/headlines03/1218-10.htm |date=22 January 2014 }} Published on Thursday, 18 December 2003 by [[Reuters]]</ref> But agreed that he could be held until an appeal was heard.
* On 20 February 2004, the Supreme Court agreed to hear the government's appeal.
* The Supreme Court heard the case, ''[[Rumsfeld v. Padilla]]'', in April 2004, but on 28 June it was thrown out on a technicality. The court declared that New York State, where the case was originally filed, was an improper venue and that the case should have been filed in South Carolina, where Padilla was being held.
* On 28 February 2005, in [[Spartanburg]], [[South Carolina]], U.S. District Judge [[Henry Floyd (judge)|Henry Floyd]] ordered the Bush administration to either charge Padilla or release him.<ref>[https://www.nytimes.com/2005/03/01/politics/01terror.html?ex=1111899600&en=4bade73e4d6a651f&ei=5070 Judge Says Terror Suspect Can't Be Held as an Enemy Combatant] The [[New York Times]] 1 March 2005</ref> He relied on the Supreme Court's ruling in the parallel enemy combatant case of Yaser Hamdi (''Hamdi v. Rumsfeld''), in which the majority decision declared a "state of war is not a blank check for the president when it comes to the rights of the nation's citizens".
* On 19 July 2005, in [[Richmond, Virginia]], the Fourth Circuit Court of Appeals began hearing the government's appeal of the lower court (the District of South Carolina, at Charleston) ruling by Henry F. Floyd, District Judge, (CA-04-2221-26AJ). Their ruling, decided 9 September 2005, was that "the President does possess such authority pursuant to the Authorization for Use of Military Force Joint Resolution enacted by Congress in the wake of the attacks on the United States of September 11, 2001. Accordingly, the judgment of the district court is reversed".<ref>José Padilla Fourth Circuit Court of Appeals 19 July, 9 September 2005</ref>
* In Hamdan v. Rumsfeld (29 June 2006) the U.S. Supreme Court did not rule on the subject of unlawful combatant status but did reaffirm that the U.S. is bound by the Geneva Conventions. Most notably it said that Common Article 3 of the Geneva Convention, regarding the treatment of detainees, applies to all prisoners in the War on Terror.

====Combatant Status Review Tribunal====
{{Wikisource|Combatant Status Review Tribunal (fact sheet of 17 October 2006)}}

Following the ''Hamdan v. Rumsfeld''-ruling (November 2004) the Bush administration has begun using Combatant Status Review Tribunals to determine the status of detainees. By doing so the obligation under Article 5 of the GCIII was to be addressed.

However, critics maintain these CSRTs are inadequate to warrant acceptance as a competent tribunal. Their principal arguments are:
* The CSRT conducted rudimentary proceedings
* The CSRT afforded detainees few basic protections
* Many detainees lacked counsel
* The CSRT also informed detainees only of general charges against them, while the details on which the CSRT premised enemy combatant status decisions were classified.
* Detainees had no right to present witnesses or to cross-examine government witnesses.
Notable cases pointed to by critics as demonstrating the flawed nature of the procedure include: [[Mustafa Ait Idir]], [[Moazzam Begg]], [[Murat Kurnaz]], [[Feroz Abbasi]], and [[Martin Mubanga]]. A comment by legal experts states:

<blockquote>It appears ... that the procedures of the Combatant Status Review Tribunals do not qualify as status determination under the Third Geneva Convention. ... The fact that no status determination had taken place according to the Third Geneva Convention was sufficient reason for a judge from the District Court of Columbia dealing with a habeas petition, to stay proceedings before a military commission. Judge Robertson in Hamdan v. Rumsfeld held that the Third Geneva Convention, which he considered selfexecuting, had not been complied with since a Combatant Status Review Tribunal could not be considered a 'competent tribunal' pursuant to article 5 of the Third Geneva Convention.<ref>[http://www.utrechtlawreview.org/publish/articles/000003/article.pdf Guantánamo Bay: A Reflection On The Legal Status And Rights Of ‘Unlawful Enemy Combatants’] {{webarchive|url=https://web.archive.org/web/20060218001849/http://www.utrechtlawreview.org/publish/articles/000003/article.pdf |date=18 February 2006 }} [[PDF]] by Terry Gill and Elies van Sliedregt in the [http://www.utrechtlawreview.org/ Utrecht Law Review] or</ref></blockquote>

[[James Crisfield]], the legal advisor to the Tribunals, offered his legal opinion, that CSRT "do not have the discretion to determine that a detainee should be classified as a prisoner of war – only whether the detainee satisfies the definition of 'enemy combatant'".<ref name=ApCsrt>[http://wid.ap.org/documents/detainees/moazzambegg.pdf Moazzam Begg's dossier (.pdf)]{{Dead link|date=December 2022 |bot=InternetArchiveBot |fix-attempted=yes }} from his Combatant Status Review Tribunal, hosted by [[Associated Press]]</ref> Determining whether a captive should be classified as a prisoner of war is the sole purpose of a competent tribunal.

Analysis of these Tribunals by two lawyers for Guananamo detainees, Professor [[Mark P. Denbeaux]] of the [[Seton Hall University School of Law]], his son [[Joshua Denbeaux]], and some of his law students resulted in a report called ''[[No-hearing hearings]]''. In essence it supports the criticism voiced above.<ref name="No-hearing_hearings">[http://law.shu.edu/news/final_no_hearing_hearings_report.pdf No-hearing hearings] {{Webarchive|url=https://web.archive.org/web/20090907190444/http://law.shu.edu/publications/guantanamoReports/final_no_hearing_hearings_report.pdf |date=7 September 2009 }} by, Mark Denbeaux, Professor, Seton Hall University School of Law and Counsel to two Guantanamo detainees, Joshua Denbeaux, Esq. and David Gratz, John Gregorek, Matthew Darby, Shana Edwards, Shane Hartman, Daniel Mann, Megan Sassaman and Helen Skinner
Students of Seton Hall University School of Law</ref><ref name="VillageVoice">
{{cite news
| url=http://www.villagevoice.com/news/0650,hentoff,75255,2.html
| title=Bush's War Crimes Cover-up
| author=[[Nat Hentoff]]
| newspaper=[[The Village Voice]]
| date=8 December 2006
| access-date=2007-04-02
| archive-url=https://web.archive.org/web/20080617075536/http://www.villagevoice.com/news/0650,hentoff,75255,2.html
| url-status=dead
| archive-date=2008-06-17
}}</ref>

====Military commissions====
{{Main|Military Commissions Act of 2006}}

As of 17 October 2006, when President Bush signed the Military Commissions Act of 2006 into law, Title 10 of the United States Code was amended to include a definition of an "unlawful enemy combatant" as

{{Blockquote|a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the [[United States]] or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the [[Taliban]], [[al-Qaida]], or associated forces); or a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.}}

The definition of a lawful enemy combatant is also given, and much of the rest of the law sets out the specific procedures for determining whether a given detainee of the U.S. armed forces is an unlawful enemy combatant and how such combatants may or may not be treated in general and tried for their crimes in particular. Among its more controversial provisions, the law stipulates that a non United States citizen held as an enemy combatant or is awaiting such determination may not seek [[habeas corpus]] relief. Such detainees must simply wait until the military convene a detainee status review tribunal (under the procedures described in the [[Detainee Treatment Act of 2005]]).

Immediately after Bush signed the Act into law, the [[U.S. Justice Department]] notified the [[U.S. Court of Appeals for the District of Columbia]] that the Court no longer had jurisdiction over a combined ''habeas'' case that it had been considering since 2004. A notice dated the following day listed 196 other pending habeas cases for which it made the same claim.<ref>[https://www.washingtonpost.com/wp-dyn/content/article/2006/10/19/AR2006101901692.html?nav=rss_nation/special "Court Told It Lacks Power in Detainee Cases", ''Washington Post'']</ref>

Of the first three war crimes cases brought against Guantanamo Bay detainees under the Military Commissions Act, one resulted in a [[plea bargain]] and the two others were dismissed on [[jurisdiction]]al grounds.

On 4 June 2007, in two separate cases, military tribunals dismissed charges against detainees who had been designated as "enemy combatants" but not as "unlawful enemy combatants". The first case was that of [[Omar Khadr]], a [[Canadians|Canadian]] who had been designated as an enemy combatant in 2004. Khadr was accused of throwing a grenade during a firefight in Afghanistan in 2002. [[Colonel (United States)|Colonel]] [[Peter Brownback]] ruled that the military tribunals, created to deal with "unlawful enemy combatants", had no jurisdiction over detainees who had been designated only as "enemy combatants". He dismissed without prejudice all charges against Khadr.<ref>{{Cite news |last=Koring |first=Paul |title=U.S. case against Khadr collapses |newspaper=[[The Globe and Mail|Toronto Globe and Mail]] |year=2007 |url=https://www.theglobeandmail.com/servlet/story/RTGAM.20070604.wkhadr0604_1/BNStory/International/home |url-status=dead |archive-url=https://web.archive.org/web/20070606204940/http://www.theglobeandmail.com/servlet/story/RTGAM.20070604.wkhadr0604_1/BNStory/International/home |archive-date=6 June 2007 }}</ref> Also on 4 June, [[Captain (U.S. Navy)|Captain]] [[Keith J. Allred]] reached the same conclusion in the case of [[Salim Ahmed Hamdan]].<ref name="nytimes.com">{{Cite news| last =Glaberson| first =William | title =Military Judges Dismiss Charges for 2 Detainees| newspaper =[[The New York Times]]| date =5 June 2007| url = https://www.nytimes.com/2007/06/05/world/americas/05gitmo.html?hp}}</ref><ref name=DoDKhadrChargesDismissed20070604>
{{cite news
| url=http://www.defenselink.mil/news/newsarticle.aspx?id=46281
| title=Charges Dismissed Against Canadian at Guantanamo
| author=Sergeant Sara Wood
| publisher=[[United States Department of Defense]]
| date=4 June 2007
| access-date=2007-06-07
}}</ref><ref name=DoDHamdanChargesDismissed20070604>
{{cite news
| url=http://www.defenselink.mil/news/newsarticle.aspx?id=46288
| title=Judge Dismisses Charges Against Second Guantanamo Detainee
| author=Sergeant Sara Wood
| publisher=United States Department of Defense
| date=4 June 2007
| access-date=2007-06-07
}}</ref>

The [[United States Department of Defense]] responded by stating: "We believe that Congress intended to grant jurisdiction under the Military Commissions Act to individuals, like Mr. Khadr, who are being held as enemy combatants under existing C.S.R.T. procedures". That position was called "dead wrong" by Specter.<ref name="nytimes.com"/>

====Supreme Court ruling on Military Commissions Act of 2006====
{{main|Boumediene v. Bush}}
On 12 June 2008, the Supreme Court ruled, in a 5-4 opinion in [[Boumediene v. Bush]], that Guantanamo captives were entitled to access the US justice system and to [[habeas relief]].<ref name=AssociatedPress20080612-a>
{{cite news
 |url = http://ap.google.com/article/ALeqM5iS3b8PdQ_oVlJA2eFtDvhnnTUvFwD918J1QO0
 |title = High Court: Gitmo detainees have rights in court
 |agency = Associated Press
 |author = Mark Sherman
 |date = 12 June 2008
 |access-date = 2008-06-12
 |quote = The court said not only that the detainees have rights under the Constitution, but that the system the administration has put in place to classify them as enemy combatants and review those decisions is inadequate.
 |url-status = dead
 |archive-url = https://web.archive.org/web/20080622111733/http://ap.google.com/article/ALeqM5iS3b8PdQ_oVlJA2eFtDvhnnTUvFwD918J1QO0
 |archive-date = 22 June 2008
}}
</ref><ref name=GlobeAndMail20080612>
{{cite news
 |url = https://www.theglobeandmail.com/servlet/story/RTGAM.20080612.wgitmo0612/BNStory/International/home
 |title = Terror suspects can challenge detention: U.S. Supreme Court
 |work = [[The Globe and Mail]]
 |author = Mark Sherman
 |date = 12 June 2008
 |access-date = 2008-06-12
 |url-status = dead
 |archive-url = https://web.archive.org/web/20080614225408/http://www.theglobeandmail.com/servlet/story/RTGAM.20080612.wgitmo0612/BNStory/International/home
 |archive-date = 14 June 2008
}}
</ref><ref name=BaltimoreSun20080612>{{cite news
| url=http://weblogs.baltimoresun.com/news/politics/blog/2008/06/court_sides_with_gitmo_detaine.html
| title=Court backs Gitmo detainees
| newspaper=[[The Baltimore Sun]]
| author=[[James Oliphant]]
| date=12 June 2008
| access-date=2008-06-12
| archive-date=14 June 2008
| archive-url=https://web.archive.org/web/20080614213437/http://weblogs.baltimoresun.com/news/politics/blog/2008/06/court_sides_with_gitmo_detaine.html
| url-status=dead
}}</ref> The Supreme Court ruled that the [[Military Commissions Act of 2006]] operated as an "unconstitutional suspension" of the [[writ of habeas corpus]].<ref>{{Cite web |title=Boumediene v. Bush, 553 U.S. 723, 792 (2008) |url=https://supreme.justia.com/cases/federal/us/553/723/#tab-opinion-1962621 |access-date=2024-09-25 |website=Justia Law |language=en}}</ref> Justice [[Anthony Kennedy]] wrote in the majority opinion:

{{Blockquote|The laws and Constitution are designed to survive, and remain in force, in extraordinary times.}}

The Court also ruled that the Combatant Status Review Tribunals were "inadequate".<ref name=AssociatedPress20080612-a/> [[Ruth Bader Ginsburg]], [[Stephen Breyer]], [[David Souter]] and [[John Paul Stevens]] joined Kennedy in the majority.

Chief Justice [[John G. Roberts|John Roberts]], in his dissenting opinion, called the Combatant Status Review Tribunals:<ref name=AssociatedPress20080612-a/>

{{Blockquote|the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.}}

[[Samuel Alito]], [[Clarence Thomas]] and [[Antonin Scalia]] joined Roberts in the dissent.<ref name=GlobeAndMail20080612/>

[[Vincent Warren]], the executive director of the [[Center for Constitutional Rights]], the organization that initiated the action that triggered the Supreme Court ruling responded:<ref name=BaltimoreSun20080612/>

{{Blockquote|The Supreme Court has finally brought an end to one of our nation's most egregious injustices. It has finally given the men held at Guantanamo the justice that they have long deserved. By granting the writ of habeas corpus, the Supreme Court recognizes a rule of law established hundreds of years ago and essential to American jurisprudence since our nation's founding. This six-year-long nightmare is a lesson in how fragile our constitutional protections truly are in the hands of an overzealous executive.}}

====2009====

In January and February 2009, President [[Barack Obama]]'s nominees for [[United States Attorney General|Attorney General]] and [[United States Solicitor General|Solicitor General]], [[Eric Holder]] and [[Elena Kagan]], both testified they agreed the U.S. government may detain combatants in accordance with the laws of war until the end of the war, (this sidesteps the issue of deciding whether the combatant is a lawful or unlawful combatant and the need to try them). When asked by [[United States Senator|Senator]] [[Lindsey Graham]] "If our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield?" Both Holder and Kagan said that they would.<ref name="LAT2009feb11sg">[http://www.latimes.com/news/nationworld/nation/la-na-solicitor-general11-2009feb11,0,7158432.story Solicitor general nominee says 'enemy combatants' can be held without trial], [[Los Angeles Times]], 11 February 2009</ref><ref>Evan Perez. [https://www.wsj.com/articles/SB124223286506515765 Obama Considers Detaining Terror Suspects Indefinitely], [[Wall Street Journal]], 14 May 2009</ref><ref>Tim Reid. [https://web.archive.org/web/20090507160858/http://www.timesonline.co.uk/tol/news/world/us_and_americas/article6216709.ece Problem of Guantánamo detainees returns to haunt Barack Obama], [[The Times]], 4 May 2009</ref>

On 28 October 2009, President Obama signed the [[Military Commissions Act of 2009]] into law, which was included in the [[National Defense Authorization Act for Fiscal Year 2010]] ({{USStatute|111|84|123|2190|2009|10|28|HR|2647}}). While critics said it is an improvement over prior versions of military-commissions passed during the Bush administration, it still fails to provide many of the fundamental elements of a fair trial.<ref>{{cite web |title=Obama endorses military commissions for Guantánamo detainees |date=2009-10-29 |website=[[The Christian Science Monitor]] |archive-url=https://web.archive.org/web/20230531002011/https://www.csmonitor.com/USA/Justice/2009/1029/p02s01-usju.html |archive-date=2023-05-31 |url-status=live |url=http://www.csmonitor.com/USA/Justice/2009/1029/p02s01-usju.html}}</ref><ref>[http://www.humanrightsfirst.org/our-work/law-and-security/military-commissions/ Military Commissions]</ref>