Order Code RS22173
Updated July 20, 2005
CRS Report for Congress
Received through the CRS Web
Detainees at Guantanamo Bay
Jennifer K. Elsea
Legislative Attorney
American Law Division
Summary
In Rasul v. Bush,124 S.Ct. 2686 (2004), a divided Supreme Court declared that “a
state of war is not a blank check for the president”and ruled that persons deemed “enemy
combatants” have the right to challenge their detention before a judge or other “neutral
decision-maker.” The decision reversed the holding of the Court of Appeals for the D.C.
Circuit, which had agreed with the Bush Administration that no U.S. court has
jurisdiction to hear petitions for habeas corpus by or on behalf of the detainees because
they are aliens and are detained outside the sovereign territory of the United States.
Lawyers have filed more than a dozen petitions on behalf of some 60 detainees in the
District Court for the District of Columbia, where judges have reached opposing
conclusions as to whether the detainees have any enforceable rights to challenge their
treatment and detention. Fifteen of the detainees have been determined by the President
to be subject to his military order (“MO”) of November 13, 2001,
1 making them eligible
for trial by military commission.2 Military commissions were temporarily halted pending
the result of one case, but are to be resumed now that the D.C. Circuit has reversed the
decision of a lower court that had found the procedures for military commissions to be
invalid.
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1 Order on Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism,
November 13, 2001, 66 Fed.Reg. 57,833 (2000)(hereinafter “MO” or “military order”).
2
For an analysis of the military commission rules, see CRS Report RL31600, The Department of
Defense Rules for Military Commissions: Analysis of Procedural Rules and Comparison with
Proposed Legislation and the Uniform Code of Military Justice.
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Congressional Research Service ˜ The Library of Congress
After the U.S. Supreme Court held that U.S. courts have jurisdiction to hear legal
challenges on behalf of more than 500 persons detained at the U.S. Naval Station in
Guantanamo Bay, Cuba in connection with the war against terrorism, the Pentagon
established administrative hearings, called “Combatant Status Review Tribunals”
(CSRTs), to allow the detainees to contest their status as enemy combatants. This
report provides an overview of the CSRT procedures and summarizes court cases
related to the detentions and the use of military commissions. The relevant Supreme
Court rulings are discussed in CRS Report RS21884, The Supreme Court and
Detainees in the War on Terrorism: Summary and Analysis. This report will be
updated as events warrant.
