Terrorist attacks, at home and abroad, have raised difficult questions for our legal and political systems. In times of crisis our government has often struggled to strike the proper balance between the protection of the people and each person's individual rights. Our national experience has taught us that we must always guard against the dangers of overreaction and undue trespass on individual rights, lest we lose the very freedoms we are fighting to protect. After September 11th, at least two U.S. citizens were designated as "enemy combatants" and detained incommunicado without access to counsel or meaningful judicial review. Additionally, hundreds of individuals have been detained as “enemy combatants” at Guantanamo Bay, Cuba since 2002. The ABA Task Force on the Treatment of Enemy Combatants was created to examine the complex questions of statutory, constitutional, and international law and policy raised by such detentions.

The U.S. Supreme Court on June 28, 2004 held in two decisions that U.S. citizens being held by the military as “enemy combatants” must be given a “meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker.” Hamdi v. Rumsfeld, No. 03-6696, and Rasul, et al., v. Bush, President of the United States, et al., No. 03-334. The ABA filed an amicus brief in the Hamdi case, arguing that fundamental due process requires that U.S. citizens indefinitely detained by the government have access to counsel and the opportunity to challenge the allegations against them. In rejecting the Administration’s argument that the executive branch alone has the authority to impose open-ended detentions on citizens and non-citizens deemed enemy combatants, the Court said “history and common sense teach us that an unchecked system of detention carries the potential to become means for oppression and abuse of others who do not present that sort of threat.”

American citizen Jose Padilla (the so-called "dirty bomber") was arrested in May, 2002, in Chicago and subsequently declared by President Bush to be an enemy combatant and held incommunicado without access to his lawyer in a Navy brig in South Carolina. On December 18, 2003, the Court of Appeals for the Second Circuit ruled that the President lacked the authority to detain Padilla as an "enemy combatant" without specific Congressional authorization. The ABA had filed an amicus brief, arguing that Padilla is entitled to meaningful judicial review of the basis for his detention, which necessarily requires access to counsel. The appeals court gave the government 30 days to release Mr. Padilla or to take some other action, such as bring criminal charges against him in civilian court or seek to hold him as a material witness in connection with a grand jury proceeding. The U.S. Supreme Court heard appeals from the Hamdi and Padilla cases on April 28, 2004. After a series of appeals, in September 2005, the Fourth U.S. Circuit Court of Appeals ruled the government could continue to hold Jose Padilla indefinitely citing the President's power under the Sept. 14, 2001, congressional resolution authorizing the use of force against al-Qaeda. Padilla v. Hanft, No. 05-6396. However, on April 3, 2006, the U.S. Supreme Court declined to hear the appeal of Jose Padilla challenging his detention as an “enemy combatant,” finding Padilla’s claim moot because he had been subsequently indicted by a civilian court in November 2005 and transferred to a civilian jail. Padilla v. Hanft, No. 05-533.

At Guantanamo Bay, the U.S. military began holding special tribunals to allow detainees to contest their status as “enemy combatants.” The Pentagon established these Combatant Status Review Tribunals following the U.S. Supreme Court’s decision in Rasul v. Bush in 2004 affirming that detainees at Guantanamo have a right to challenge their detentions in U.S. courts under the federal habeas statute.

In 2005, Congress passed the Detainee Treatment Act (DTA), which attempted to replace the habeas regime with limited judicial review of combatant status determinations. As part of its 2006 decision in Hamdan v. Rumsfeld, the U.S. Supreme Court determined that the DTA did not strip the federal courts of jurisdiction to hear habeas corpus petitions from Guantanamo detainees that were already pending at the time the law was enacted.

In response to the Hamdan decision, Congress adopted legislation authorizing the establishment of military commission, the Military Commissions Act of 2006 (MCA) (P.L. 109-366). A provision in the MCA strips detainees of the opportunity to petition for a writ of habeas corpus to challenge the factual basis of their detention.

In February 2007, the Court of Appeals for the D.C. Circuit upheld the constitutionality of the habeas-stripping provision of the MCA. Boumediene v. Bush, No. 06-1195 and Al Odah v. U.S., No. 06-1196. On June 12, 2008, the U.S. Supreme Court struck down the habeas-stripping provision of the MCA as unconstitutional. Boumediene v. Bush, No. 06-1195 and Al Odah v. U.S., No. 06-1196. The ABA submitted an amicus brief in the case supporting the extension of habeas protections to detainees at Guantanamo. Specifically, the Court held 5-4, in an opinion by Justice Kennedy, that the petitioners at Guantanamo have a constitutional right to petition for habeas corpus and that the process of D.C. Circuit review from Combatant Status Review Tribunals determinations established by the Detainee Treatment Act, Pub. L. 109-148, is not an adequate substitute for habeas corpus.

The Supreme Court’s ruling in Boumediene v. Bush has thus far not interrupted proceedings at Guantanamo Bay. Approximately 265 individuals are currently being detained there and twenty individuals have been charged under the procedures set up in the MCA. A split verdict was issued in the first trial, U.S. v. Hamdan, on August 6, 2008 with a conviction on providing material support for terrorism and an acquittal on conspiracy charges. A number of other cases are also moving forward at this time with pre-trial motions. The ABA continues to be one of five non-governmental organizations that is routinely invited to witness military commission proceedings at Guantanamo as human rights observers.

In the years prior to the Supreme Court’s ruling in Boumediene v. Bush, Congress has spent time considering the restoration of habeas corpus. Senators Arlen Specter (R-PA) and Patrick Leahy (D-VT), prominent leaders on the Senate Judiciary Committee, introduced legislation to restore jurisdiction to the federal courts to hear habeas corpus claims from individuals held at Guantanamo Bay seeking to challenge the basis for their detention. The ABA strongly supported S. 185, the “Habeas Corpus Restoration Act,” which was advanced with bipartisan support by the Senate Judiciary Committee in June 2007. In September 2007, Senators Specter and Leahy attempted to attach their proposal as an amendment to H.R. 1585, the FY 2008 National Defense Authorization. However, despite garnering majority support of the Senate, the sponsors came up four votes short of what was necessary to overcome a filibuster of the amendment.

Additional legislative proposals to restore habeas jurisdiction were introduced in the U.S. House of Representatives as well. The ABA endorsed H.R. 2826, bipartisan legislation introduced by Rep. Ike Skelton (D-MO), as well as H.R. 1416, introduced by Rep. Jerrold Nadler (D-NY). Congressional hearings were held on these proposals and a subcommittee markup advanced legislation for consideration by the full Committee on the Judiciary, but further consideration of any habeas restoration legislation has been postponed due to the outcome of the U.S. Supreme Court’s decision in Boumediene.

• By direct constitutional demand, the writ of habeas corpus provides access to the federal courts to challenge detentions of persons by the Executive.


• Substantial, but not absolute, deference should be given to Executive Branch designations of enemy combatants.


• The right to judicial review would be hollow unless detainees as enemy combatants are afforded meaningful access to counsel and to the effective assistance of counsel in order to appropriately challenge their detention.


• To preserve national security interests, the court may establish appropriate conditions to accommodate the needs of the government and the detainee.


• The Congress, in coordination with the Executive Branch, should establish clear standards and procedures governing detention of a U.S. citizen or resident, pursuant to 18 U.S.C. 4001 (a) which provides that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."

The ABA urges that U.S. citizens and residents who are detained within the United States based on their designation as "enemy combatants" be afforded the opportunity for meaningful judicial review of their status, under a standard according such deference to the designation as the reviewing court determines to be appropriate to accommodate the needs of the detainee and the requirements of national security; that they not be denied access to counsel in connection with the opportunity for such review, subject to appropriate conditions as may be set by the court to accommodate the needs of the detainee and the requirements of national security; that Congress, in coordination with the Executive Branch, establish clear standards and procedures governing the designation and treatment of U.S. citizens, residents, or others who are detained within the United States as "enemy combatants" and that in setting and executing national policy regarding detention of "enemy combatants," Congress and the Executive Branch should consider how the policy adopted by the United States might affect the response of other nations to future acts of terrorism.

The Association adopted policy at the 2004 Annual Meeting condemning the use of torture and cruel, inhuman, and degrading treatment of detainees in Iraq, Afghanistan and elsewhere by U.S. personnel. The policy also calls upon the Administration to comply fully with the U.S. Constitution and international laws and conventions ratified by the U.S. that outlaw torture, and urges the President and Congress to establish an independent, bipartisan commission with subpoena power to investigate the abuses of detainees.