Related Rule
United States of America
Practice Relating to Rule 99. Deprivation of Liberty
The US Field Manual (1956) states that “unlawful confinement of a protected person” is a grave breach of the 1949 Geneva Conventions. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 502.
The US Naval Handbook (2007) states:
Because unlawful combatants do not have combatant immunity, they may be prosecuted for their unlawful actions. However, prosecution is not required and unlawful combatants may be detained until the cessation of hostilities without being prosecuted for their acts. If prosecuted and convicted, unlawful combatants may be detained for the duration of their sentence, even if it extends beyond the cessation of hostilities. Likewise, even if their criminal sentence has been served but hostilities have not ceased, they may be held until the cessation of hostilities. Regardless of the fact that hostilities have not ceased or the full sentence has not been served, a detaining nation may release an unlawful combatant at any time. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 11.3.2.
The Handbook defines unlawful enemy combatants as “persons not entitled to combatant immunity, who engage in acts against the United States or its coalition partners in violation of the laws and customs of war during armed conflict”. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 5.4.1.2.
Under the US War Crimes Act (1996), grave breaches of the 1949 Geneva Conventions are war crimes. 
United States, War Crimes Act, 1996, Section 2441(c).
In July 2007, and in accordance with section 6(a)(3) of the Military Commissions Act (2006), the US President issued an Executive Order which stated that a “Program of Detention and Interrogation Operated by the Central Intelligence Agency” complied with US obligations under common Article 3 of the 1949 Geneva Conventions. The Executive Order stated in part:
By the authority vested in me as President and Commander in Chief of the Armed Forces by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force (Public Law 107 40), the Military Commissions Act of 2006 (Public Law 109 366), and section 301 of title 3, United States Code, it is hereby ordered as follows:
Section 1. General Determinations.
(a) The United States is engaged in an armed conflict with al Qaeda, the Taliban, and associated forces. Members of al Qaeda were responsible for the attacks on the United States of September 11, 2001, and for many other terrorist attacks, including against the United States, its personnel, and its allies throughout the world. These forces continue to fight the United States and its allies in Afghanistan, Iraq, and elsewhere, and they continue to plan additional acts of terror throughout the world. On February 7, 2002, I determined for the United States that members of al Qaeda, the Taliban, and associated forces are unlawful enemy combatants who are not entitled to the protections that the Third Geneva Convention provides to prisoners of war. I hereby reaffirm that determination.
(b) The Military Commissions Act defines certain prohibitions of Common Article 3 for United States law, and it reaffirms and reinforces the authority of the President to interpret the meaning and application of the Geneva Conventions.
Sec. 3. Compliance of a Central Intelligence Agency Detention and Interrogation Program with Common Article 3.
(a) Pursuant to the authority of the President under the Constitution and the laws of the United States, including the Military Commissions Act of 2006, this order interprets the meaning and application of the text of Common Article 3 with respect to certain detentions and interrogations, and shall be treated as authoritative for all purposes as a matter of United States law, including satisfaction of the international obligations of the United States. I hereby determine that Common Article 3 shall apply to a program of detention and interrogation operated by the Central Intelligence Agency as set forth in this section. The requirements set forth in this section shall be applied with respect to detainees in such program without adverse distinction as to their race, color, religion or faith, sex, birth, or wealth.
(b) I hereby determine that a program of detention and interrogation approved by the Director of the Central Intelligence Agency fully complies with the obligations of the United States under Common Article 3, provided that:
(i) the conditions of confinement and interrogation practices of the program do not include:
(A) torture, as defined in section 2340 of title 18, United States Code;
(B) any of the acts prohibited by section 2441(d) of title 18, United States Code, including murder, torture, cruel or inhuman treatment, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, taking of hostages, or performing of biological experiments;
(C) other acts of violence serious enough to be considered comparable to murder, torture, mutilation, and cruel or inhuman treatment, as defined in section 2441(d) of title 18, United States Code;
(D) any other acts of cruel, inhuman, or degrading treatment or punishment prohibited by the Military Commissions Act (subsection 6(c) of Public Law 109 366) and the Detainee Treatment Act of 2005 (section 1003 of Public Law 109 148 and section 1403 of Public Law 109 163);
(E) willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for the purpose of humiliation, forcing the individual to perform sexual acts or to pose sexually, threatening the individual with sexual mutilation, or using the individual as a human shield; or
(F) acts intended to denigrate the religion, religious practices, or religious objects of the individual;
(ii) the conditions of confinement and interrogation practices are to be used with an alien detainee who is determined by the Director of the Central Intelligence Agency:
(A) to be a member or part of or supporting al Qaeda, the Taliban, or associated organizations; and
(B) likely to be in possession of information that:
(1) could assist in detecting, mitigating, or preventing terrorist attacks, such as attacks within the United States or against its Armed Forces or other personnel, citizens, or facilities, or against allies or other countries cooperating in the war on terror with the United States, or their armed forces or other personnel, citizens, or facilities; or
(2) could assist in locating the senior leadership of al Qaeda, the Taliban, or associated forces. 
United States, Executive Order 13440, Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency, 20 July 2007.
The Executive Order was revoked in 2009. 
United States, Executive Order 13491, Ensuring Lawful Interrogations, 2009, Section 1.
In 2009, the US President issued Executive Order 13491, Ensuring Lawful Interrogations, which stated:
By the authority vested in me by the Constitution and the laws of the United States of America, in order to improve the effectiveness of human intelligence-gathering, to promote the safe, lawful, and humane treatment of individuals in United States custody and of United States personnel who are detained in armed conflicts, to ensure compliance with the treaty obligations of the United States, including the [1949] Geneva Conventions, and to take care that the laws of the United States are faithfully executed, I hereby order as follows:
Section 1. Revocation. Executive Order 13440 of July 20, 2007, is revoked. All executive directives, orders, and regulations inconsistent with this order, including but not limited to those issued to or by the Central Intelligence Agency (CIA) from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals, are revoked to the extent of their inconsistency with this order. Heads of departments and agencies shall take all necessary steps to ensure that all directives, orders, and regulations of their respective departments or agencies are consistent with this order.
Sec. 4. Prohibition of Certain Detention Facilities, and Red Cross Access to Detained Individuals.
(a) CIA Detention. The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future. 
United States, Executive Order 13491, Ensuring Lawful Interrogations, 2009, Sections 1 and 4(a).
In 2009, the US President issued Executive Order 13492, Closure of Guantánamo Detention Facilities, which stated:
By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to effect the appropriate disposition of individuals currently detained by the Department of Defense at the Guantánamo Bay Naval Base (Guantánamo) and promptly to close detention facilities at Guantánamo, consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows:
Sec. 2. Findings.
(a) Over the past 7 years, approximately 800 individuals whom the Department of Defense has ever determined to be, or treated as, enemy combatants have been detained at Guantánamo. The Federal Government has moved more than 500 such detainees from Guantánamo, either by returning them to their home country or by releasing or transferring them to a third country. The Department of Defense has determined that a number of the individuals currently detained at Guantánamo are eligible for such transfer or release.
Sec. 3. Closure of Detention Facilities at Guantánamo. The detention facilities at Guantánamo for individuals covered by this order shall be closed as soon as practicable, and no later than 1 year from the date of this order. If any individuals covered by this order remain in detention at Guantánamo at the time of closure of those detention facilities, they shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States. 
United States, Executive Order 13492, Closure of Guantánamo Detention Facilities, 2009, Sections 2(a) and 3.
In the Pohl case before the US Military Tribunal at Nuremberg in 1947, 18 accused were charged, inter alia, with the war crime of “illegal imprisonment”. 
United States, Military Tribunal at Nuremberg, Pohl case, Indictment, 13 January 1947.
Three of the accused were acquitted and the remainder were convicted receiving sentences ranging from ten years to death by hanging. 
United States, Military Tribunal at Nuremberg, Pohl case, Judgment, 3 November 1947.
In 2002, in the Mehinovic case, a civil lawsuit filed on behalf of four Bosnian Muslims who were tortured by a Bosnian-Serb soldier in Bosnia-Herzegovina in 1992, the US District Court Northern District of Georgia found the defendant liable for torture; cruel, inhuman and degrading treatment; arbitrary detention; war crimes; crimes against humanity; and genocide. The Court awarded the plaintiffs US$140 million in damages. In its judgment, the Court stated:
Arbitrary detention is a violation of customary international law and thus actionable under the ATCA [Alien Tort Claims Act]. See Alvarez, 266 F.3d at 1052–53; Fernandez-Roque v. Smith, 622 F.Supp. 887, 903 (N.D.Ga.1985); Forti, 672 F.Supp. at 1541. “Arbitrary detention is cited as a violation of international law in all comprehensive international human rights instruments.” [Restatement (Third) of Foreign Relations Law § 702, Reporters’ Note 6 (1987) (citing, inter alia, Universal Declaration, art. 9; ICCPR [International Covenant on Civil and Political Rights], art 9; European Convention, art. 5; American Convention, art. 7)]. Generally, detention is arbitrary if “it is not pursuant to law; it may be arbitrary also if it is incompatible with the principles of justice or with the dignity of the human person.” [Restatement (Third) of Foreign Relations Law, § 702, comment h (1987)] More specifically, arbitrary detention is the detention of a person in an official detention facility or in any other place, without notice of charges and failure to bring that person to trial within a reasonable time. Id.; see Fernandez-Roque, 622 F.Supp. at 903 (indefinite detention of Cuban refugees without periodic hearings violates customary international law); see also Soroa-Gonzales v. Civiletti, 515 F.Supp. 1049, 1061, n. 18. (N.D.Ga.1981) (indefinite detention of Cuban refugees would violate customary international law if question were properly before court). Here, plaintiffs each were detained without ever being advised of any charges against them. There is no evidence that any was ever brought before a court or ever tried for any offense, or that the detentions were made pursuant to any law.
Acts of torture, inhuman treatment, and arbitrary detention of civilians committed in the course of hostilities violate the international law of war as codified in the Geneva Conventions and, hence, are a proper basis for liability under the ATCA. Kadic v. Karadzic, 70 F.3d at 242–43. Such acts, whether committed in an international armed conflict or a non-international armed conflict, violate customary international law and are enforceable under the ATCA [Alien Tort Claims Act, 28 U.S.C. § 1350 (1988)]. 
United States, District Court Northern District of Georgia, Mehinovic case, Judgment, 29 April 2002.
In 2004, in the Hamdi case involving a US citizen being detained indefinitely as an “enemy combatant”, the US Supreme Court reversed the dismissal of a habeas corpus petition by a lower court, recognized the power of the government to detain “enemy combatants”, but ruled that detainees who are US citizens must have the ability to challenge their detention before a neutral decision-maker. On the matter of the capture and detention of combatants, the Court stated:
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.” Ex parte Quirin, supra, at 28, 30. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. Naqvi, Doubtful Prisoner-of-War Status, 84 Int’l Rev. Red Cross 571, 572 (2002) (“[C]aptivity in war is ‘neither revenge, nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war’” (quoting decision of Nuremberg Military Tribunal, reprinted in 41 Am. J. Int’l L. 172, 229 (1947))); W. Winthrop, Military Law and Precedents 788 (rev. 2d ed. 1920) (“The time has long passed when ‘no quarter’ was the rule on the battlefield . … It is now recognized that ‘Captivity is neither a punishment nor an act of vengeance,’ but ‘merely a temporary detention which is devoid of all penal character.’ … ‘A prisoner of war is no convict; his imprisonment is a simple war measure.’” (citations omitted)); cf. In re Territo, 156 F.2d 142, 145 (CA9 1946) (“The object of capture is to prevent the captured individual from serving the enemy. He is disarmed and from then on must be removed as completely as practicable from the front, treated humanely and in time exchanged, repatriated or otherwise released” (footnotes omitted)).
There is no bar to this Nation’s holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. 317 U.S., at 20, 87 L. Ed. 3, 63 S. Ct. 2. We held that “[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of … the law of war.” Id., at 37–38, 87 L. Ed. 3, 63 S. Ct. 2. While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. See id., at 30–31, 87 L. Ed. 3, 63 S. Ct. 2. See also Lieber Code P 153, Instructions for the Government of Armies of the United States in the Field, Gen. Order No. 100 (1863), reprinted in 2 F. Lieber, Miscellaneous Writings, p 273 P. 153 (1880) (contemplating, in code binding the Union Army during the Civil War, that “captured rebels” would be treated “as prisoners of war”). Nor can we see any reason for drawing such a line here. A citizen, no less than an alien, can be “part of or supporting forces hostile to the United States or coalition partners” and “engaged in an armed conflict against the United States,” …; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict.
In light of these principles, it is of no moment that the AUMF [Authorization for Use of Military Force Against Terrorists, 115 Stat 224, enacted 18 September 2001] does not use specific language of detention. Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of “necessary and appropriate force,” Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.
Hamdi objects, nevertheless, that Congress has not authorized the indefinite detention to which he is now subject. The Government responds that “the detention of enemy combatants during World War II was just as ‘indefinite’ while that war was being fought.” Id., at 16, 87 L. Ed. 3, 63 S. Ct. 2. We take Hamdi’s objection to be not to the lack of certainty regarding the date on which the conflict will end, but to the substantial prospect of perpetual detention. We recognize that the national security underpinnings of the “war on terror,” although crucially important, are broad and malleable. As the Government concedes, “given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement.” Ibid. The prospect Hamdi raises is therefore not farfetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi’s detention could last for the rest of his life.
It is a clearly established principle of the law of war that detention may last no longer than active hostilities. See Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3406, T. I. A. S. No. 3364 (“Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities”). See also Article 20 of the Hague Convention (II) on Laws and Customs of War on Land, July 29, 1899, 32 Stat 1817 (as soon as possible after “conclusion of peace”); Hague Convention (IV), supra, Oct. 18, 1907, 36 Stat 2301 (“conclusion of peace” (Art. 20)); Geneva Convention, supra, July 27, 1929, 47 Stat 2055 (repatriation should be accomplished with the least possible delay after conclusion of peace (Art. 75)); Paust, Judicial Power to Determine the Status and Rights of Persons Detained without Trial, 44 Harv. Intl L. J. 503, 510–511 (2003) (prisoners of war “can be detained during an armed conflict, but the detaining country must release and repatriate them ‘without delay after the cessation of active hostilities,’ unless they are being lawfully prosecuted or have been lawfully convicted of crimes and are serving sentences” (citing Arts. 118, 85, 99, 119, 129, Geneva Convention (III), 6 U. S. T., at 3384, 3392, 3406, 3418)).
Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress’ grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. … The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who “engaged in an armed conflict against the United States.” If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of “necessary and appropriate force,” and therefore are authorized by the AUMF. 
United States, Supreme Court, Hamdi case, Judgment, 28 June 2004.
[emphasis in original]
In 2006, in the El Masri case, a civil suit in which the plaintiff claimed to have been an innocent victim of the United States’ extraordinary rendition program and sought redress from the former Director of the Central Intelligence Agency (CIA), private corporations allegedly involved in the program, and unknown employees of both the CIA and the private corporations, the Court granted the Government’s motion to dismiss, finding that the claim of state secrets was valid. The Court stated:
[I]t is important to note that, unlike other privileges, the state secrets privilege is absolute and therefore once a court is satisfied that the claim is validly asserted, the privilege is not subject to a judicial balancing of the various interests at stake.
[T]he substance of El-Masri’s publicly available complaint alleges a clandestine intelligence program, and the means and methods the foreign intelligence services of this and other countries used to carry out the program. And, as the public declaration makes pellucidly clear, any admission or denial of these allegations by defendants in this case would reveal the means and methods employed pursuant to this clandestine program and such a revelation would present a grave risk of injury to national security.
To succeed on his claims, El-Masri would have to prove that he was abducted, detained, and subjected to cruel and degrading treatment, all as part of the United States’ extraordinary rendition program. As noted above, any answer to the complaint by the defendants risks the disclosure of specific details about the rendition argument.
[W]hile dismissal of the complaint deprives El-Masri of an American judicial forum for vindicating his claims, well-established and controlling legal principles require that in the present circumstances, El-Masri’s private interests must give way to the national interest in preserving state secrets. The United States’ motion to dismiss must therefore be granted.
It is important to emphasize that the result reached here is required by settled, controlling law. It is in no way an adjudication of, or comment on, the merit or lack of merit of El-Masri’s complaint. Nor does this ruling comment or rule in any way on the truth or falsity of his factual allegations; they may be true or false, in whole or in part. Further, it is also important that nothing in this ruling should be taken as a sign of judicial approval or disapproval of rendition programs; it is not intended to do either. In times of war, our country, chiefly through the Executive Branch, must often take exceptional steps to thwart the enemy. Of course, reasonable and patriotic Americans are still free to disagree about the propriety and efficacy of those exceptional steps. But what this decision holds is that these steps are not proper grist for the judicial mill where, as here, state secrets are at the center of the suit and the privilege is validly invoked.
Finally, it is worth noting that putting aside all the legal issues, if El-Masri’s allegations are true or essentially true, then all fair-minded people, including those who believe that state secrets must be protected, that this lawsuit cannot proceed, and that renditions are a necessary step to take in this war, must also agree that El-Masri has suffered injuries as a result of our country’s mistake and deserves a remedy. Yet, it is also clear from the result reached here that the only sources of that remedy must be the Executive Branch or the Legislative Branch, not the Judicial Branch. 
United States, District Court for the Eastern District of Virginia, El Masri case, Judgment, 12 May 2006.
The Al-Marri case in June 2007 involved a citizen of Qatar, legally resident in the United States, who had been arrested in December 2001 on terrorism-related charges and confined to a US-naval prison in Charleston as an enemy combatant (the US President having determined that he was closely associated with al Qaeda and engaged in conduct in preparation for acts of terrorism). Appearing before the US Court of Appeals for the Fourth Circuit, Al-Marri appealed a decision of a District Court, which had denied his petition for a writ of habeas corpus. In a majority judgment, the Court of Appeals rejected the Government’s arguments that civilians become enemy combatants if they engaged in criminal conduct on behalf of an enemy organization and that the President had inherent constitutional authority to order the military to detain such persons. It reversed the decision of the lower court and remanded the case back to it, with instructions to issue a writ of habeas corpus directing the Secretary of Defense to release Al-Marri from military custody. On matters regarding “deprivation of liberty” and “combatant status”, the Court of Appeals found:
The act of depriving a person of the liberty protected by our Constitution is a momentous one; thus, recognized exceptions to criminal process are narrow in scope, and generally permit only limited periods of detention. See, e.g., Jackson v. Indiana, 406 U.S. 715, 738, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972). And, of course, the Government can never invoke an exception, and so detain a person without criminal process, if the individual does not fit within the narrow legal category of persons to whom the exception applies …
In Hamdi, the plurality explained that precisely the same principles apply when the Government seeks to detain a person as an enemy combatant. Under the habeas procedure prescribed in Hamdi, if the Government asserts an exception to the usual criminal process by detaining as an enemy combatant an individual with constitutional rights, it must proffer evidence to demonstrate that the individual “qualif[ies]” for this exceptional treatment. 542 U.S. at 516, 534. Only after the Government has “put[] forth credible evidence that” an individual “meets the enemy-combatant criteria” does “the onus” shift to the individual to demonstrate “that he falls outside the [enemy combatant] criteria.” Id. at 534. For in this country, the military cannot seize and indefinitely detain an individual – particularly when the sole process leading to his detention is a determination by the Executive that the detention is necessary – unless the Government demonstrates that he “qualif[ies]” for this extraordinary treatment because he fits within the “legal category” of enemy combatants. Id. at 516, 522 n.1. 
United States, Court of Appeals for the Fourth Circuit, Al-Marri case, Judgment, 11 June 2007, § IIIA.
[emphasis in original]
…[W]e note that American courts have often been reluctant to follow international law in resolving domestic disputes. In the present context, however, they, like the Government here, have relied on the law of war – treaty obligations including the Hague and Geneva Conventions and customary principles developed alongside them. The law of war provides clear rules for determining an individual’s status during an international armed conflict, distinguishing between “combatants” [(members of a nation’s military, militia, or other armed forces, and those who fight alongside them) and “civilians” (all other persons)]. See, e.g., Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention) arts. 2, 4, 5, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) art. 4, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287. American courts have repeatedly looked to these careful distinctions made in the law of war in identifying which individuals fit within the “legal category” of “enemy combatants” under our Constitution. See, e.g., Hamdi, 542 U.S. at 518; Quirin, 317 U.S. at 30–31 & n.7; Milligan, 71 U.S. at 121–22; Padilla, 423 F.3d at 391. 
United States, Court of Appeals for the Fourth Circuit, Al-Marri case, Judgment, 11 June 2007, § IIIB1.
In view of the holdings in Hamdi and Padilla, we find it remarkable that the Government contends that they “compel the conclusion” that the President may detain al-Marri as an enemy combatant. For unlike Hamdi and Padilla, al-Marri is not alleged to have been part of a Taliban unit, not alleged to have stood alongside the Taliban or the armed forces of any other enemy nation, not alleged to have been on the battlefield during the war in Afghanistan, not alleged to have even been in Afghanistan during the armed conflict there, and not alleged to have engaged in combat with United States forces anywhere in the world. See Rapp Declaration (alleging none of these facts, but instead that “Al-Marri engaged in conduct in preparation for acts of international terrorism intended to cause injury or adverse effects on the United States”). 
United States, Court of Appeals for the Fourth Circuit, Al-Marri case, Judgment, 11 June 2007, § IIIB2.
Rather than supporting the Government’s position, the Supreme Court’s most recent terrorism case provides an additional reason for rejecting the contention that al-Marri is an enemy combatant. In Hamdan, the Court held that because the conflict between the United States and al Qaeda in Afghanistan is not “between nations,” it is a “‘conflict not of an international character’” – and so is governed by Common Article 3 of the Geneva Conventions. See 126 S. Ct. at 2795; see also id. at 2802 (Kennedy, J., concurring). Common Article 3 and other Geneva Convention provisions applying to non-international conflicts (in contrast to those applying to international conflicts, such as that with Afghanistan’s Taliban government) simply do not recognize the “legal category” of enemy combatant. See Third Geneva Convention, art. 3, 6 U.S.T. at 3318. As the International Committee of the Red Cross – the official codifier of the Geneva Conventions – explains, “an ‘enemy combatant’ is a person who, either lawfully or unlawfully, engages in hostilities for the opposing side in an international armed conflict;” in contrast, “[i]n non-international armed conflict combatant status does not exist.” Int’l Comm. of the Red Cross, Official Statement: The Relevance of IHL in the Context of Terrorism, at 1, 3 (Feb. 21, 2005), http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/terrorismihl-210705 (emphasis added).
Perhaps for this reason, the Government ignores Hamdan’s holding that the conflict with al Qaeda in Afghanistan is a non-international conflict, and ignores the fact that in such conflicts the “legal category” of enemy combatant does not exist. Indeed, the Government’s sole acknowledgment of Hamdan in its appellate brief is a short footnote, in which it asserts that “the Court took it as a given that Hamdan was subject to detention as an enemy combatant during ongoing hostilities.” The weakness of this response is apparent. Not only does it avoid the holding in Hamdan that the conflict between the United States and al Qaeda is a non-international conflict, but also it suggests that the Supreme Court approved Hamdan’s detention when the legality of that detention was not before the Court, and in fact, the legality of the detention of those like Hamdan, captured and detained in the conflict with al Qaeda outside the United States, is still being litigated. See, e.g., Boumediene, 375 U.S. App. D.C. 48, 476 F.3d 981.
Moreover, even were the Supreme Court ultimately to approve the detention of Hamdan and those like him, that would not bolster the Government’s position at all in the case at hand. This is so because, since the legal status of “enemy combatant” does not exist in non-international conflicts, the law of war leaves the detention of persons in such conflicts to the applicable law of the detaining country. In al-Marri’s case, the applicable law is our Constitution. Thus, even if the Supreme Court should hold that the Government may detain indefinitely Hamdan and others like him, who were captured outside the United States and lacked substantial and voluntary connections to this country, that would provide no support for approving al-Marri’s military detention. For not only was al-Marri seized and detained within the United States, he also has substantial connections to the United States, and so plainly is protected by the Due Process Clause [Fifth Amendment to the US Constitution]. 
United States, Court of Appeals for the Fourth Circuit, Al-Marri case, Judgment, 11 June 2007, § IIIB3.
[emphasis in original]
… Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if he calls them “enemy combatants.” 
United States, Court of Appeals for the Fourth Circuit, Al-Marri case, Judgment, 11 June 2007, § IIIC3.
To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them “enemy combatants,” would have disastrous consequences for the Constitution – and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power – were a court to recognize it – that could lead all our laws “to go unexecuted, and the government itself to go to pieces.” We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic. 
United States, Court of Appeals for the Fourth Circuit, Al-Marri case, Judgment, 11 June 2007, § IIIC3.
Having ordered that Al-Marri’s military detention cease in the 11 June 2007 judgment, the Court of Appeals for the Fourth Circuit subsequently vacated the judgment and held an en banc rehearing on 31 October 2007. In its revised judgment in the case, issued on 15 July 2008, the court held that Al-Marri could be held in military detention indefinitely as an enemy combatant, stating:
Having considered the briefs and arguments of the parties, the en banc court now holds: (1) by a 5 to 4 vote … that, if the Government’s allegations about al-Marri are true, Congress has empowered the President to detain him as an enemy combatant; and (2) by a 5 to 4 vote … that, assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government’s allegations against him are true, al-Marri has not been afforded sufficient process to challenge his designation as an enemy combatant.
Accordingly, the judgment of the district court is reversed and remanded for further proceedings consistent with the opinions that follow. 
United States, Court of Appeals for the Fourth Circuit, Al-Marri case, Judgment, 15 July 2008, p. 5.
In the Hamlily case in 2009, in which the Petitioners challenged the legality of their detention at Guantánamo by seeking writs of habeas corpus, the District Court for the US District of Columbia ruled that the US Government’s detention policy is generally consistent with the authority conferred on the US President under the Authorization for Use of Military Force (AUMF), Public Law 107-40, 115 Stat. 224, 18 September 2001, and core law of war principles that govern non-international armed conflicts. The Court stated in relation to the background of the case:
On March 13, 2009, in response to a prior order of this Court, the government [Department of Justice] submitted a refinement of its position with respect to its authority to detain those individuals being held at Guantánamo. The government proposed the following “definitional framework”:
The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.
Resp’ts’ Mem. at 2. [Resp’ts’ Mem. Regarding the Detention Authority Relative to Individuals Held at Guantánamo Bay, In re: Guantánamo Bay Litigation, Misc. No. 08-442 (TFH), 13 March 2009].
To aid its consideration of these and other related issues, the Court held a hearing on April 17, 2009. Less than a week later, Judge Walton issued his opinion in Gherebi v. Obama, Civ. A. No. 04-1164, 2009 WL 1068955 (D.D.C. Apr. 22, 2009). Gherebi concerns the same question at issue here and Judge Walton’s thorough and thoughtful opinion advances this Court’s analysis considerably. He concluded that “the President has the authority to detain persons who were part of, or substantially supported, the Taliban or al-Qaeda forces that are engaged in hostilities against the United States or its coalition partners, provided that the terms ‘substantially supported’ and ‘part of’ are interpreted to encompass only individuals who were members of the enemy organization’s armed forces, as that term is intended under the laws of war, at the time of their capture.” Id. at *24. 
United States, District Court for the District of Columbia, Hamlily case, Judgment, 19 May 2009, pp. 3 and 5.
[footnotes in original omitted]
In its broad analysis of the case, the Court stated:
[T]he Court turns to the government’s proposed framework. Although this Court concurs in much of the reasoning and conclusions of Gherebi, it does not agree with the decision to adopt the government’s framework in its entirety. Specifically, the Court rejects the concept of “substantial support” as an independent basis for detention. Likewise, the Court finds that “directly support[ing] hostilities” is not a proper basis for detention. In short, the Court can find no authority in domestic law or the law of war, nor can the government point to any, to justify the concept of “support” as a valid ground for detention. The Court does not accept the government’s position in full, then, even given the deference accorded to the Executive in this realm, because it is ultimately the province of the courts to say “what the law is,” Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803), and in this context that means identifying the “permissible bounds” of the Executive’s detention authority, Hamdi, 542 U.S. at 522 n.1. Detention based on substantial or direct support of the Taliban, al Qaeda or associated forces, without more, is simply not warranted by domestic law or the law of war.
With the exception of these two “support”-based elements, however, the Court will adopt the government’s proposed framework, largely for the reasons explained in Gherebi. The AUMF and the law of war do authorize the government to detain those who are “part of” the “Taliban or al Qaida forces.” Because the AUMF permits the President “to use all necessary and appropriate force” against “organizations” involved in the September 11 attacks, it naturally follows that force is also authorized against the members of those organizations. In light of Hamdi and subsequent cases, such force includes the power to detain. That is consistent with the law of war principles governing non-international conflicts. The authority also reaches those who were members of “associated forces,” which the Court interprets to mean “co-belligerents” as that term is understood under the law of war. Lastly, the government’s detention authority covers “any person who has committed a belligerent act,” which the Court interprets to mean any person who has directly participated in hostilities. But while the Court concludes that the concepts of “substantial support” and “direct support” are not, under the law of war, independent bases for detention, evidence tending to demonstrate that a petitioner provided significant “support” is relevant in assessing whether he was “part of” a covered organization (through membership or otherwise) or “committed a belligerent act” (through direct participation in hostilities). 
United States, District Court for the District of Columbia, Hamlily case, Judgment, 19 May 2009, pp. 7 and 8.
[footnote in original omitted]
In its analysis of the government’s “definitional” framework” providing for the detention of “Taliban or al Qaida forces or associated forces”, the Court stated:
Petitioners argue, just as they did in Gherebi, that because they cannot be classified as “combatants” under Article 4(A) of the Third Geneva Convention [1949 Geneva Convention III] or Article 43 of [1977] Additional Protocol I, they must be “civilians” – a classification that means they are not subject to military force (i.e., detention) “unless and for such time as they take a direct part in hostilities.” [Additional Protocol I] arts. 51(1), 51(3) … Putting aside for the moment the restrictive definition of “direct participation” advanced by petitioners, their advocacy of a detention authority based upon the dichotomy between combatants and civilians in traditional international armed conflicts is flawed. To begin with, the U.S. conflict with al Qaeda is a non-international armed conflict; hence, Article 4 and Additional Protocol I do not apply. Moreover, the government no longer seeks to detain petitioners on the basis that they are “enemy combatants.” Indeed, the government’s abandonment of this term is an implicit acknowledgment that “[i]n non-international armed conflict combatant status does not exist. … The treaty authorities that regulate non-international armed conflicts – Common Article 3, Additional Protocol II and the International Committee of the Red Cross’s Commentaries on both – in fact do not “make any reference whatsoever to the term ‘combatant.’” Gherebi, 2009 WL 1068955, at *18. Gherebi correctly observes that “petitioners evidently interpret this lack of protection for ‘combatants’ in non-international armed conflicts to mean that every individual associated with the enemy to any degree in such a conflict must be treated as a civilian.” Id. Gherebi then explains:
The Geneva Conventions restrict the conduct of the President in armed conflicts; they do not enable it. And the absence of any language in Common Article 3 and [1977] Additional Protocol II regarding prisoners of war or combatants means only that no one fighting on behalf of an enemy force in a non-international armed conflict can lay claim to the protections of such status, not that every signatory to the Geneva Conventions must treat the members of an enemy force in a civil war or transnational conflict as civilians regardless of how important the members in question might be to the command and control of the enemy force or how well organized and coordinated that force might be. Id.
This Court agrees that the lack of combatant status in non-international armed conflicts does not, by default, result in civilian status for all, even those who are members of enemy “organizations” like al Qaeda. Moreover, the government’s claimed authority to detain those who were “part of” those organizations is entirely consistent with the law of war principles that govern non-international armed conflicts. Common Article 3, by its very terms, contemplates the “detention” of “[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their weapons and those placed hors de combat,” and commands that they be treated “humanely.” Third Geneva Convention, art. 3(1). At a minimum, this restriction establishes that States engaged in non-international armed conflict can detain those who are “part of” enemy armed groups. Gherebi, 2009 WL 1068955, at *19. Similarly, Part IV of Additional Protocol II, in particular Article 13. … Such protections for “civilians” would be superfluous “if every member of the enemy in a non-international armed conflict is a civilian.” Gherebi, 2009 WL 1068955, at *20. The clear implication of Part IV, then, is that Additional Protocol II recognizes a class of individuals who are separate and apart from the “civilian population” – i.e., members of enemy armed groups. Indeed, it makes clear that “[t]hose who belong to armed forces or armed groups may be attacked at any time.” Int’l Comm. of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 1453 (Sandoz et al. eds. 1987) (discussing Article 13 of Additional Protocol II). As for the practical application of these principles, historical examples are few and far between. There are, however, several decisions of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) that have recognized that, in a non-international armed conflict, membership in an armed group makes one liable to attack and incapacitation independent of direct participation in hostilities. …
In sum, then, the Court agrees with Gherebi and hence rejects petitioners’ argument “that the laws of war permit a state to detain only individuals who ‘directly participate’ in hostilities in non-international armed conflicts.” 2009 WL 1068955, at *21. The Court also concludes that the authority claimed by the government to detain those who were “part of … Taliban or al Qaida forces” is consistent with the law of war. Even though this portion of the government’s framework is consistent with the law of war, however, the government’s position cannot be said to reflect customary international law because, candidly, none exists on this issue. See Jean-Marie Henckaerts, 87 Int’l Rev. of the Red Cross 175, 190 (Mar. 2005) (“[I]t is not clear whether members of armed opposition groups are civilians who lose their protection from attack when directly participating in hostilities or whether members of such groups are liable to attack as such.”). Nonetheless, the Court finds that the government’s claimed authority is consistent with, and is not affirmatively prohibited by, the law of war. …
In addition to members of al Qaeda and the Taliban, the government’s detention authority also reaches those who were members of “associated forces.” For purposes of these habeas proceedings, the Court interprets the term “associated forces” to mean “co-belligerents” as that term is understood under the law of war. … [T]he government has the authority to detain members of “associated forces” as long as those forces would be considered co-belligerents under the law of war.
With respect to the criteria to be used in determining whether someone was “part of” the “Taliban or al Qaida or associated forces,” the Court will not attempt to set forth an exhaustive list because such determinations must be made on an individualized basis. But this Court will, by necessity, employ an approach that is more functional than formal, as there are no settled criteria for determining who is a “part of” an organization such as al Qaeda. Cf. Third Geneva Convention, art. 4(A) (identifying characteristics of membership in the armed forces or militia for purposes of prisoner of war status in an international armed conflict). “[M]ere sympathy for or association with an enemy organization does not render an individual a member” of that enemy organization. Gherebi, 2009 WL 1068955, at *21. The key inquiry, then, is not necessarily whether one self-identifies as a member of the organization (although this could be relevant in some cases), but whether the individual functions or participates within or under the command structure of the organization – i.e., whether he receives and executes orders or directions. 
United States, District Court for the District of Columbia, Hamlily case, Judgment, 19 May 2009, pp. 12–17.
[footnotes in original omitted]
In its analysis of the government’s “definitional” framework” providing for the detention of persons who “substantially supported” Taliban or al Qaida forces, the Court stated:
After repeated attempts by the Court to elicit a more definitive justification for the “substantial support” concept in the law of war, it became clear that the government has none. Nevertheless, the government asserted that “substantial support” is intended to cover those individuals “who are not technically part of al-Qaeda,” but who have some meaningful connection to the organization by, for example, providing financing. … Regardless of the reasonableness of this approach from a policy perspective, a detention authority that sweeps so broadly is simply beyond what the law of war will support. … [A]lthough this concept may be attractive from a policy perspective, and indeed could be the basis for the development of future domestic legislation or international law, there is at this time no justification – in the AUMF or the law of war – for such an approach. The law of war permits detention of individuals who were “part of” one of the organizations targeted by the AUMF. That is the outer limit of the Executive’s detention authority as stated in the AUMF and consistent with the law of war. Detaining an individual who “substantially supports” such an organization, but is not part of it, is simply not authorized by the AUMF itself or by the law of war. Hence, the government’s reliance on “substantial support” as a basis for detention independent of membership in the Taliban, al Qaeda or an associated force is rejected. 
United States, District Court for the District of Columbia, Hamlily case, Judgment, 19 May 2009, pp. 18–19.
In its analysis of the government’s “definitional” framework” providing for the detention of any person who has “committed a belligerent act, or has directly supported hostilities” in aid of Taliban or al Qaida forces, the Court stated:
For essentially the same reasons [as were provided in the court’s analysis of the detention of persons who “substantially supported” Taliban or al Qaida forces], the Court also finds that the government’s detention authority does not extend to those individuals who have only “directly supported hostilities.” Although this language received considerably less attention in the briefing and at argument, it suffers from the same deficiency already identified – detaining an individual solely on the basis that he “directly supported hostilities” is inconsistent with the law of war. The government does, however, have the authority to detain “any person who has committed a belligerent act.” And just as the Court will consider evidence relating to “substantial support” of covered organizations in assessing whether an individual was functionally “part of” the organization, so, too, will it consider evidence of “direct support” for hostilities in assessing whether an individual “committed a belligerent act.”
For purposes of these habeas proceedings, the Court interprets the phrase “committed a belligerent act” to cover any person who has directly participated in hostilities. That conclusion is consistent with the law of war. See Additional Protocol II, art. 13(3) (stating that civilians shall not be subject to military force “unless and for such time as they take a direct part in hostilities”); Additional Protocol I, art. 51(3) (same). 
United States, District Court for the District of Columbia, Hamlily case, Judgment, 19 May 2009, p. 20.
In conclusion, the Court stated:
As Hamdi foretold, drawing the “permissible bounds” of the government’s detention authority can only truly occur as courts consider the unique facts of each individual case as they are presented. 542 U.S. at 522 n.1. However, the foregoing analysis and interpretation of the government’s authority to detain sets forth some guidance for the parties in that process. After careful consideration, the Court is satisfied that the government’s detention authority is generally consistent with the authority conferred upon the President by the AUMF and the core law of war principles that govern non-international armed conflicts. In those instances where the government’s framework has exceeded that which is permitted by the law of war – specifically with respect to the concept of “support” – the Court rejects such bases for detention. Therefore, the Court concludes that under the AUMF the President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who are or were part of Taliban or al Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed (i.e., directly participated in) a belligerent act in aid of such enemy armed forces. 
United States, District Court for the District of Columbia, Hamlily case, Judgment, 19 May 2009, pp. 21–22.
In the Al-Bihani case in January 2010, involving an appeal by a Yemeni citizen held in detention at Guantánamo Bay since 2002 for the denial of a writ of habeas corpus by a district court, the US Court of Appeals for the District of Columbia Circuit affirmed the order of the lower court, stating with regard to the detention powers granted to the US President by Congress:
Al-Bihani’s many arguments present this court with two overarching questions regarding the detainees at the Guantánamo Bay naval base. The first concerns whom the President can lawfully detain pursuant to statutes passed by Congress. …
Al-Bihani challenges the statutory legitimacy of his detention by advancing a number of arguments based upon the international laws of war. …
Before considering these arguments in detail, we note that all of them rely heavily on the premise that the war powers granted by the AUMF [Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001)] and other statutes are limited by the international laws of war. This premise is mistaken. There is no indication in the AUMF, the Detainee Treatment Act of 2005, Pub. L. No. 109-148, div. A, tit. X, 119 Stat. 2739, 27 41–43, or the MCA [Military Commissions Act] of 2006 or 2009, that Congress intended the international laws of war to act as extra-textual limiting principles for the President’s war powers under the AUMF. The international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 111(3)–(4) (1987). Even assuming Congress had at some earlier point implemented the laws of war as domestic law through appropriate legislation, Congress had the power to authorize the President in the AUMF and other later statutes to exceed those bounds. See id § 115(1)(a). Further weakening their relevance to this case, the international laws of war are not a fixed code. Their dictates and application to actual events are by nature contestable and fluid. See id § 102 cmts. b & c (stating there is “no precise formula” to identify a practice as custom and that “[i]t is often difficult to determine when [a custom’s] transformation into law has taken place”). Therefore, while the international laws of war are helpful to courts when identifying the general set of war powers to which the AUMF speaks, see Hamdi Hamdi v. Rumsfeld, 542 U.S. 507] at 520, their lack of controlling legal force and firm definition render their use both inapposite and inadvisable when courts seek to determine the limits of the President’s war powers. Therefore, putting aside that we find Al-Bihani’s reading of international law to be unpersuasive, we have no occasion here to quibble over the intricate application of vague treaty provisions and amorphous customary principles. The sources we look to for resolution of Al-Bihani’s case are the sources courts always look to: the text of relevant statutes and controlling domestic case law.
Under those sources, Al-Bihani is lawfully detained whether the definition of a detainable person is, as the district court articulated it, “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,” or the modified definition offered by the government that requires that an individual “substantially support” enemy forces. The statutes authorizing the use of force and detention not only grant the government the power to craft a workable legal standard to identify individuals it can detain, but also [in] the application of these definitions. The AUMF authorizes the President 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.” AUMF § 2(a). The Supreme Court in Hamdi ruled that “necessary and appropriate force” includes the power to detain combatants subject to such force. 542 U.S. at 519. Congress, in the 2006 MCA, provided guidance on the class of persons subject to detention under the AUMF by defining “unlawful enemy combatants” who can be tried by military commission. 2006 MCA sec. 3, § 948a(1). The 2006 MCA authorized the trial of an individual who “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 Qaeda, or associated forces).” Id § 948a(1)(A)(i). In 2009, Congress enacted a new version of the MCA with a new definition that authorized the trial of “unprivileged enemy belligerents,” a class of persons that includes those who “purposefully and materially supported hostilities against the United States or its coalition partners.” Military Commissions Act of 2009 (2009 MCA) sec. 1802, §§ 948a(7), 948b(a), 948c, Pub. L. No. 111-84, tit. XVIII, 123 Stat. 2190, 2575– 76. The provisions of the 2006 and 2009 MCAs are illuminating in this case because the government’s detention authority logically covers a category of persons no narrower than is covered by its military commission authority. Detention authority in fact sweeps wider, also extending at least to traditional P.O.W.s, see id § 948a(6), and arguably to other categories of persons. But for this case, it is enough to recognize that any person subject to a military commission trial is also subject to detention, and that category of persons includes those who are part of forces associated with Al Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against U.S. Coalition partners.
… [T]the facts show Al-Bihani was part of and supported a group – prior to and after September 11 – that was affiliated with Al Qaeda and Taliban forces and engaged in hostilities against a U.S. Coalition partner. Al-Bihani, therefore, falls squarely within the scope of the President’s statutory detention powers. 
United States, Court of Appeals for the District of Columbia Circuit, Al-Bihani case, Judgment, 5 January 2010, pp. 5–10.
[footnote in original omitted]
The Court stated the following regarding the appellant’s claim that a cessation of hostilities required his release from detention under international law:
With the government’s detention authority established as an initial matter, we turn to the argument that Al-Bihani must now be released according to longstanding law of war principles because the conflict with the Taliban has allegedly ended.
The Geneva Conventions require release and repatriation only at the “cessation of active hostilities.” Third Geneva Convention [1949 Geneva Convention III] art. 118. That the Conventions use the term “active hostilities” instead of the terms “conflict” or “state of war” found elsewhere in the document is significant. It serves to distinguish the physical violence of war from the official beginning and end of a conflict, because fighting does not necessarily track formal timelines. See id art. 2 (provisions apply “even if the state of war is not recognized”), art. 118 (discussing the possibility of the cessation of active hostilities even in the absence of an agreement to cease hostilities). The Conventions, in short, codify what common sense tells us must be true: release is only required when the fighting stops.
Even so, we do not rest our resolution of this issue on international law or mere common sense. The determination of when hostilities have ceased is a political decision, and we defer to the Executive’s opinion on the matter, at least in the absence of an authoritative congressional declaration purporting to terminate the war. See Ludecke v. Watkins, 335 U.S. 160, 168–70 & n.13 (1948) (“[T]ermination [of a state of war] is a political act.”). Al-Bihani urges the court to ignore Ludecke’s controlling precedent because the President in that case had pronounced that a war was ongoing, whereas in this case the President has made no such pronouncement. We reject Al-Bihani’s entreaty. A clear statement requirement is at odds with the wide deference the judiciary is obliged to give to the democratic branches with regard to questions concerning national security. In the absence of a determination by the political branches that hostilities in Afghanistan have ceased, Al-Bihani’s continued detention is justified. 
United States, Court of Appeals for the District of Columbia Circuit, Al-Bihani case, Judgment, 5 January 2010, pp. 12–13.
In the Al-Bihani case in August 2010, the US Court of Appeals for the District of Columbia Circuit issued an en banc statement, denying a request for the court to rehear the case en banc. The statement, which referred to the obiter dicta nature of the 5 January 2010 judgment with respect to the role of international law-of-war principles in interpreting the AUMF [Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001)], stated:
We decline to en banc this case to determine the role of international law-of-war principles in interpreting the AUMF because, as the various opinions issued in the case indicate, the panel’s discussion of that question is not necessary to the disposition of the merits. See Al–Bihani v. Obama, 590 F.3d 866, 871, 873–74 (D.C.Cir.2010) (panel opinion); id. at 883–85 (Williams, J., concurring in the judgment); Al–Bihani v. Obama, No. 09–5051, slip op. at 1 (D.C.Cir. Aug. 31, 2010) (Kavanaugh, J., concurring in the denial of rehearing en banc); see also Gov’t’s Resp. to Pet. for Reh’g and Reh’g En Banc at 1–2 (stating that the dispute over the role of the law of war does not “change[ ] the outcome”). 
United States, Court of Appeals for the District of Columbia Circuit, Al-Bihani case, Statement, 31 August 2010, p. 1.
In the Awad case in June 2010, in which a detainee at Guantánamo Bay, Cuba, appealed a district court’s denial of his petition for a writ of habeas corpus, the US Court of Appeals for the District of Columbia Circuit affirmed the decision of the lower court that the petition be denied. The Court stated:
Determining whether [the appellant] is “part of” al Qaeda is a mixed question of law and fact. Whether our review of the district court’s finding on this question is de novo or for clear error does not matter in this case because the evidence is so strong. Simply recounting the evidence establishes that under either standard of review, the district court’s conclusion that [the appellant] was “part of” al Qaeda was not erroneous. [The appellant] has not come close to meeting his burden of showing reversible error in the district court’s finding that [the appellant] was “part of” al Qaeda at Mirwais Hospital during December 2001.
[The appellant] challenges three of the district court’s legal holdings. These we review de novo. See Al–Bihani, 590 F.3d at 870. First, [the appellant] challenges the district court’s holding that the government must prove its authority to continue to detain him by a preponderance of the evidence. He argues that the government has to meet its burden by clear and convincing evidence. He is incorrect. We have already explicitly held that a preponderance of the evidence standard is constitutional in evaluating a habeas petition from a detainee held at Guantánamo Bay, Cuba. See Al–Bihani, 590 F.3d at 878 (“Our narrow charge is to determine whether a preponderance standard is unconstitutional. Absent more specific and relevant guidance, we find no indication that it is.”). The Al–Bihani holding follows the Supreme Court’s guidance to lower courts in the Hamdi plurality. See Hamdi, 542 U.S. at 534, 124 S.Ct. 2633 (“Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant.”). … [The appellant] seems to argue that there is some uncertainty in the evidentiary standard. Lest there be any further misunderstandings, let us be absolutely clear. A preponderance of the evidence standard satisfies constitutional requirements in considering a habeas petition from a detainee held pursuant to the AUMF [Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001)].
[The appellant] next argues that the district court erred in denying his petition without a specific factual finding that [the appellant] would pose a threat to the United States and its allies if he were released. Again, Al-Bihani forecloses this argument. Al-Bihani makes plain that the United States’s authority to detain an enemy combatant is not dependent on whether an individual would pose a threat to the United States or its allies if released but rather upon the continuation of hostilities. 590 F.3d at 874. [The appellant] again attempts to insert uncertainty into this court’s prior holding where there is none. Whether a detainee would pose a threat to U.S. interests if released is not at issue in habeas corpus proceedings in federal courts concerning aliens detained under the authority conferred by the AUMF.
[The appellant]’s last challenge is that it is not enough that he was found to be “part of” al Qaeda. He argues that there must be a specific factual finding that he was part of the “command structure” of al Qaeda. There is no such requirement under the AUMF. See AUMF (“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 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.”). Nowhere in the AUMF is there a mention of command structure.
The distinction here is between defining what is necessary and what is sufficient. If the government can establish by a preponderance of the evidence that a detainee was part of the “command structure” of al Qaeda, this satisfies the requirement to show that he was “part of” al Qaeda. But there are ways other than making a “command structure” showing to prove that a detainee is “part of” al Qaeda. For example, if a group of individuals were captured who were shooting at U.S. forces in Afghanistan, and they identified themselves as being members of al Qaeda, it would be immaterial to the government’s authority to detain these people whether they were part of the “command structure” of al Qaeda. Once [the appellant] was “part of” al Qaeda by joining the al Qaeda fighters behind the barricade at the hospital, the requirements of the AUMF were satisfied. See AlBihani, 590 F.3d at 872 (holding that under the AUMF, a person may be lawfully detained if, inter alia, he was “part of” al Qaeda forces). [The appellant] points us to no authority from this court or the Supreme Court that would counsel a different decision. 
United States, Court of Appeals for the District of Columbia Circuit, Awad case, Judgment, 2 June 2010, pp. 10–12.
[footnote in original omitted]
The Court concluded:
[The appellant] points us to no legal authority for the proposition that he must be a part of al Qaeda’s “command structure” to be detained. Accordingly, we affirm the district court’s denial of his petition for a writ of habeas corpus. 
United States, Court of Appeals for the District of Columbia Circuit, Awad case, Judgment, 2 June 2010, p. 12.
In the Bensayah case in June 2010, in which a detainee at Guantánamo Bay, Cuba, appealed a district court’s denial of his petition for a writ of habeas corpus, the US Court of Appeals for the District of Columbia Circuit remanded the case to the lower court for it to determine if the appellant was “functionally” part of al Qaeda and therefore lawfully detained under the Authorization for Use of Military Force (AUMF). The Court stated:
[The appellant], an Algerian citizen, was arrested by the Bosnian police on immigration charges in late 2001. He … and five other Algerian men arrested in Bosnia … were then turned over to the United States Government and transported to the U.S. Naval Station at Guantánamo Bay, where they have been detained since January 2002.
In 2004 [the appellant] and the five other detainees petitioned the district court for writs of habeas corpus. Although their petitions were originally dismissed, Khalid v. Bush, 355 F.Supp.2d 311, 314 (D.D.C. 2005), they were reinstated after the Supreme Court held that detainees at Guantánamo Bay are constitutionally “entitled to the privilege of habeas corpus to challenge the legality of their detention,” Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 2262, 171 L.Ed.2d 41 (2008).
In August 2008 the district court entered a case management order (CMO) establishing the procedures that would govern this case. See CMO, Boumediene v. Bush, No. 04–1166(RJL) (D.D.C. Aug. 27, 2008). …
The Government claimed authority to detain the six men pursuant both to the AUMF [Pub.L. 107–40, § 2(a), 115 Stat. 224, 224 (2001)] and to the President’s inherent powers as Commander in Chief. …
The district court [granted habeas to each of the other five petitioners, but] denied [the appellant]’s petition because it determined “the Government has met its burden by providing additional evidence that sufficiently corroborates its allegations from this unnamed source that [the appellant] is an al-Qaida facilitator.” [F.Supp.2d 191] Id. at 198. The corroborative evidence provided by the Government is of three sorts: (1) evidence linking [the appellant] to al Qaeda, and specifically to a “senior al-Qaida facilitator”; (2) evidence of Bensayah’s history of travel “between and among countries using false passports in multiple names”; and (3) evidence creating “sufficient doubt as to [the appellant]’s credibility.” Id.
… Because it held [the appellant]’s detention was lawful based upon his support of al Qaeda, the court did not go on to consider whether he was a “member” of al Qaeda or whether his detention was lawful on the alternative ground that he was “part of” that organization.
There have been three developments since the district court’s decision. First, the Government has eschewed reliance upon a portion of the evidence that the “senior al-Qaida facilitator” with whom [the appellant] allegedly had contact was in fact a senior al Qaeda facilitator. Second, the Government has changed its position concerning the source and scope of its authority to detain [the appellant]. Whereas the Government had previously claimed authority to detain [the appellant] based upon both the AUMF and the President’s constitutional authority as Commander in Chief, it now relies solely upon the AUMF. Third, the Government has abandoned its argument that [the appellant] is being detained lawfully because of the support he rendered to al Qaeda – the sole basis upon which the district court denied [the appellant]’s petition. The Government now contends that [the appellant]’s detention is lawful only because he was “part of” al Qaeda.
… [W]e have made clear elsewhere that the AUMF authorizes the Executive to detain, at the least, any individual who is functionally part of al Qaeda. Barhoumi, 432 (detainee “was ‘part of an al-Qaida-associated force and therefore properly detained pursuant to the AUMF’”); Awad, at 11 (“Once [a petitioner is shown to be] ‘part of al Qaeda … the requirements of the AUMF [are] satisfied”); Al–Bihani, 590 F.3d at 872–74.
… [I]t is impossible to provide an exhaustive list of criteria for determining whether an individual is “part of” al Qaeda. That determination must be made on a case-by-case basis by using a functional rather than a formal approach and by focusing upon the actions of the individual in relation to the organization. That an individual operates within al Qaeda’s formal command structure is surely sufficient but is not necessary to show he is “part of” the organization; there may be other indicia that a particular individual is sufficiently involved with the organization to be deemed part of it, see Awad, at 11 (“there are ways other than making a ‘command structure’ showing to prove that a detainee is ‘part of’ al Qaeda”), but the purely independent conduct of a freelancer is not enough.
The Government argues it is authorized by the AUMF to detain [the appellant] solely on the ground he was functionally a member or “part of” al Qaeda. The evidence upon which the district court relied in concluding [the appellant] “supported” al Qaeda is insufficient, however, to show he was part of that organization. Accordingly, we reverse the judgment of the district court and remand the case for the district court to hear such evidence as the parties may submit and to decide in the first instance whether [the appellant] was functionally part of al Qaeda. 
United States, Court of Appeals for the District of Columbia Circuit, Bensayah case, Judgment, 28 June 2010, pp. 418–423, 427–429 and 431–432.
[footnote in original omitted]
In the Al-Adahi case in July 2010, in which the government appealed a district court’s granting of a Guantánamo Bay detainee’s habeas corpus writ, the US Court of Appeals for the District of Columbia Circuit reversed the lower court’s decision and remanded for that court to deny the detainee’s petition for habeas corpus. The Court of Appeals stated:
[The defendant] filed his habeas corpus petition in 2005. In 2008 the Supreme Court ruled that despite statutes depriving the federal courts of jurisdiction to hear habeas petitions from Guantánamo detainees, the Suspension Clause of the Constitution at least preserved the writ as it existed in 1789. Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008).
[The defendant]’s habeas petition presented the question whether he was part of al-Qaida and therefore justifiably detained under the Authorization for Use of Military Force [AUMF], Pub.L. No. 107–40, 115 Stat. 224 (2001). The district court considered the [petition] … The court found “no reliable evidence in the record that Petitioner was a member of al-Qaida” and ruled that he should be released. Al-Adahi v. Obama, No. 05–280, 2009 WL 2584685 *16 (D.D.C. Aug.21, 2009) (“Mem.Op.”). The government brought this appeal and [the defendant] cross-appealed.
The Authorization for Use of Military Force empowers the President “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.” Pub.L. No. 107–40, § 2(a). “[A]ll necessary and appropriate force” includes the power to capture and detain those described in the congressional authorization. Hamdi v. Rumsfeld, 542 U.S. 507, 519, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004). The government may therefore hold at Guantánamo and elsewhere those individuals who are “part of” al-Qaida, the Taliban, or associated forces. See Awad v. Obama, 608 F.3d 1, 11 (D.C.Cir.2010); Al–Bihani v. Obama, 590 F.3d 866, 872, 874–75 (D.C.Cir.2010).
Whether [the defendant] fit that description was and is the ultimate issue. The obvious preliminary question is what sort of factual showing does the government, or the detainee, have to make? In this court the question is open. Al–Bihani held that the government does not have to prove the legality of detention “beyond a reasonable doubt” or by “clear and convincing evidence.” See 590 F.3d at 878; see also Awad, 608 F.3d at 10–11. Al–Bihani also decided that the preponderance-of-the-evidence standard is constitutionally permissible. 590 F.3d at 878. But we have yet to decide whether that standard is required. Id. at 878 n. 4; see also Awad, 608 F.3d at 11 n. 2.
The district judge in this case adopted the preponderance standard. Mem. Op., 2009 WL 2584685 at *1. Other district judges in our circuit have done the same. See, e.g., Awad, 608 F.3d at 3. Their rationale is unstated. After Boumediene, the district judges met in executive session and decided to coordinate proceedings in Guantánamo habeas cases. See In re Guantánamo Bay Detainee Litig., 577 F.Supp.2d 309, 310 (D.D.C.2008). On November 6, 2008, the coordinating judge issued a Case Management Order. In re Guantánamo Bay Detainee Litig., Misc. No. 08–442, 2008 WL 4858241 (D.D.C. Nov. 6, 2008). The Order stated, among other things, that the government should bear the burden of proving by a preponderance of the evidence that the petitioner’s detention is lawful. Order at 4. In support, the Order cited Boumediene. But Boumediene held only that the “extent of the showing required of the Government in these cases is a matter to be determined.” 553 U.S. 723, 128 S.Ct. 2229, 2271, 171 L.Ed.2d 41
… [W]e doubt, for the reasons stated above, that the Suspension Clause requires the use of the preponderance standard, we will not decide the question in this case. As we did in Al-Bihani, we will assume arguendo that the government must show by a preponderance of the evidence that [the defendant] was part of al-Qaida. 590 F.3d at 878 & n. 4.
… [T]he district court wrongly “required each piece of the government’s evidence to bear weight without regard to all (or indeed any) other evidence in the case. This was a fundamental mistake that infected the court’s entire analysis.” Br. of Appellants at 42.
Having tossed aside the government’s evidence, one piece at a time, the court came to the manifestly incorrect – indeed startling – conclusion that “there is no reliable evidence in the record that Petitioner was a member of al-Qaida and/or the Taliban.” Mem. Op. at *16. When the evidence is properly considered, it becomes clear that [the defendant] was – at the very least –more likely than not a part of al-Qaida. And that is all the government had to show in order to satisfy the preponderance standard. Awad, 608 F.3d at 10;
… [T]he district court clearly erred in its treatment of the evidence and in its view of the law. Cf. Barhoumi v. Obama, 609 F.3d 416, 423–24 (D.C.Cir.2010); Awad, 608 F.3d at 10. The court’s conclusion was simply not a “permissible view [ ] of the evidence.” See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573–74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). And it reached this conclusion through a series of legal errors, as we have discussed. … In all there can be no doubt that [the defendant] was more likely than not part of al-Qaida. We therefore reverse and remand with instructions to the district court to deny [the defendant]’s petition for a writ of habeas corpus. 
United States, Court of Appeals for the District of Columbia Circuit, Al-Adahi case, Judgment, 13 July 2010, pp. 1103–1106 and 1111.
In the Salahi case in November 2010, in which the US Government appealed a decision of the district court that had granted a writ of habeas corpus to the appellee – a detainee at Guantánamo Bay, Cuba – the US Court of Appeals for the District of Columbia vacated the ruling and remanded the case to the District Court for further factual findings. The Court stated:
Enacted just seven days after the September 11 terrorist attacks, the Authorization for Use of Military Force (AUMF) empowers the President of the United States 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.” Pub. L. No. 107–40, § 2(a), 115 Stat. 224, 224 (2001) … We have held that the “necessary and appropriate force” authorized by the AUMF includes the power to detain individuals who are “part of” al-Qaida, the organization that perpetrated the September 11 attacks. See Bensayah, 610 F.3d at 724–25.
After reviewing all the evidence, the district court … concluded that [the appellant] “was an al-Qaida sympathizer” and “perhaps a ‘fellow traveler.’” [Salahi v. Obama, 710 F.Supp.2d]. at 16. It also found that [the appellant] “was in touch with al-Qaida members” and provided them with “sporadic support.” Id. Nonetheless, the court concluded, Salahi was not “part of” al-Qaida at the time of his capture because the government had failed to prove that after leaving Afghanistan in 1992, he continued receiving and executing orders within al-Qaida’s “command structure.” Id. at 5, 15–16.
[T]he relevant inquiry is whether [the appellant] was “part of” al-Qaida when captured.
[T]the district court’s approach [to determining whether an individual is part of al-Qaida] is inconsistent with our recent decisions in Awad and Bensayah, which were issued after the district court granted [the appellant]’s habeas petition. These decisions make clear that the determination of whether an individual is “part of” al-Qaida “must be made on a case-by-case basis by using a functional rather than a formal approach and by focusing upon the actions of the individual in relation to the organization.” Bensayah, 610 F.3d at 725. Evidence that an individual operated within al-Qaida’s command structure is “sufficient but is not necessary to show he is ‘part of’ the organization.” Id.; see also Awad, 608 F.3d at 11. “[T]here may be other indicia that a particular individual [was] sufficiently involved with the organization to be deemed part of it.” Bensayah, 610 F.3d at 725. …
As we explained in Bensayah, however, “the purely independent conduct of a freelancer is not enough” to establish that an individual is “part of” al-Qaida. 610 F.3d at 725.
Because the district court, lacking the guidance of these later decisions, looked primarily for evidence that [the appellant] participated in al-Qaida’s command structure, it did not make definitive findings regarding certain key facts necessary for us to determine as a matter of law whether [the appellant] was in fact “part of” al-Qaida when captured. See Barhoumi, 609 F.3d at 423
[W]e think it appropriate to reiterate this Court’s admonition in Al-Adahi [Al-Adahi v. Obama, 613 F.3d 1102], also decided after the district court issued its decision in this case, that a court considering a Guantánamo detainee’s habeas petition must view the evidence collectively rather than in isolation. [Id at 1105–06. Merely because a particular piece of evidence is insufficient, standing alone, to prove a particular point does not mean that the evidence “may be tossed aside and the next [piece of evidence] may be evaluated as if the first did not exist.” Id. at 1105. The evidence must be considered in its entirety in determining whether the government has satisfied its burden of proof.
The President seeks to detain [the appellant] on the grounds that he was “part of” al-Qaida at the time he was captured. Because additional fact-finding is required to resolve that issue under this circuit’s evolving case law, we vacate and remand for further proceedings consistent with this opinion. 
United States, Court of Appeals for the District of Columbia Circuit, Salahi case, Judgment, 5 November 2010, pp. 747 and 750–753.
In August 2003, the US State Department issued a written response to an opinion issued by the United Nations Commission on Human Rights (UNCHR), dated 8 May 2003, that had referred to a UNCHR Working Group report on Arbitrary Detention, dated 8 January 2003, which was critical of US policy regarding detainees at Guantánamo Bay, Cuba. In disagreeing with the UNCHR reports, and noting that the competence of the Working Group did not extend to the laws and customs of war, the US response stated:
The laws and customs of war are the applicable law in armed conflict. The Opinion and Communication ignore this crucial juridical context, suggesting that the detainees are entitled to judicial review or enjoy the right to resort to the courts. The Opinion, however, presents no legal support for the novel proposition that detained enemy combatants have any rights under the law of armed conflict to have their detention reviewed in a human rights forum or to have access to the courts of the Detaining Power to challenge their detention during the course of ongoing conflict.
It is the view of the United States Government that we cannot have an international legal system in which honorable soldiers who abide by the law of armed conflict and are captured on the battlefield may be detained and held until the end of a war without access to courts or other benefits claimed in the Opinion, but terrorist combatants who violate the law of armed conflict must be given special privileges or released and allowed to continue their belligerent, unlawful or terrorist activities. Such a legal regime would signal to the international community that it is acceptable for armies to behave like terrorists.
Some have erroneously claimed that the United States is violating domestic and international laws that prohibit the indefinite detention of individuals without trial. This claim is contrary to the well-established and broad authority of a country to detain enemy combatants under the laws and customs of war for the duration of hostilities.
Individuals detained at Guantánamo are enemy combatants captured in the course of ongoing hostilities or directly acting in support of a hostile armed force engaged in an ongoing armed conflict. As such, they are being held in accordance with the laws and customs of war, which permit the United States to capture and detain enemy combatants to prevent their re-engaging in the ongoing armed conflict.
The United States has made it clear that the detainees are unlawful combatants – a legal status that has long been recognized under international law – who may be detained at least for the duration of hostilities. See, e.g., Ingrid Detter, The Law of War 148 (2000) (“Unlawful combatants … though they are a legitimate target for any belligerent action, are not, if captured, entitled to any prisoner of war status.”). Individuals detained at Guantánamo include a number of senior Al Qaida operatives or others committed to killing Americans and others. The United States continues to fight against enemy combatants who are planning and conducting attacks against it.
The detention of an enemy combatant is not an act of punishment but one of security and military necessity. It serves the important purpose of preventing an enemy combatant from continuing to fight against us. There is no law requiring a detaining power to prosecute enemy combatants on some form of charge or release them prior to the end of hostilities. Likewise, under the laws and customs of war, detained enemy combatants have no right of access to counsel or the courts to challenge their detention. Should a detainee be charged with a criminal offense, he would have the right to counsel and applicable fundamental procedural safeguards.
It is also important to note that the United States has no interest in detaining enemy combatants longer than necessary. On an ongoing basis, we are constantly reviewing the continued detention of each enemy combatant, based on security, war crime involvement, and intelligence concerns. This process has resulted in the release of, to date, 64 individuals. These individuals are required to sign an agreement that they will not take up arms against the United States or its allies. Additionally, some enemy combatants have been transferred to their countries of nationality for continued detention. 
United States, State Department, Response to UNCHR Opinion No. 5/2003 of 8 May 2003 and the Communication of 8 January 2003 of the Working Group on Arbitrary Detention, August 2003.
[emphasis in original]
In 2005, in its second periodic report to the Committee against Torture, the United States stated:
The United States and its coalition partners are engaged in a war against al-Qaida, the Taliban, and their affiliates and supporters. There is no question that under the law of armed conflict, the United States has the authority to detain persons who have engaged in unlawful belligerence until the cessation of hostilities. Like other wars, when they start we do not know when they will end. Still, we may detain combatants until the end of the war. 
United States, Second periodic report to the Committee against Torture, 13 January 2006, UN Doc. CAT/C/48/Add.3/Rev.1, submitted 6 May 2005, Annex 1, p.48, § 1.
In December 2005, the US Secretary of State, prior to her departure for Europe, made a detailed statement regarding US rendition, detention, interrogation and interrogation practices, including US obligations under the 1985 Convention against Torture. This stated in part:
We consider the captured members of al-Qaida and its affiliates to be unlawful combatants who may be held, in accordance with the law of war, to keep them from killing innocents.
For decades, the United States and other countries have used “renditions” to transport terrorist suspects from the country where they were captured to their home country or to other countries where they can be questioned, held, or brought to justice.
In some situations a terrorist suspect can be extradited according to traditional judicial procedures. But there have long been many other cases where, for some reason, the local government cannot detain or prosecute a suspect, and traditional extradition is not a good option. In those cases the local government can make the sovereign choice to cooperate in a rendition. Such renditions are permissible under international law and are consistent with the responsibilities of those governments to protect their citizens.
Renditions take terrorists out of action, and save lives.
In conducting such renditions, it is the policy of the United States, and I presume of any other democracies who use this procedure, to comply with its laws and comply with its treaty obligations, including those under the Convention Against Torture. Torture is a term that is defined by law. We rely on our law to govern our operations. The United States does not permit, tolerate, or condone torture under any circumstances.
International law allows a state to detain enemy combatants for the duration of hostilities. Detainees may only be held for an extended period if the intelligence or other evidence against them has been carefully evaluated and supports a determination that detention is lawful. The U.S. does not seek to hold anyone for a period beyond what is necessary to evaluate the intelligence or other evidence against them, prevent further acts of terrorism, or hold them for legal proceedings. 
United States, Department of State, Remarks Upon Her Departure for Europe, Secretary C. Rice, Andrews Air Force Base, 5 December 2005.
In March 2006, the US Government issued a written response to a report produced by a group of five special rapporteurs to the United Nations Commission on Human Rights, dated 16 February 2006, which was critical of US policy regarding detainees at Guantánamo Bay, Cuba. The US Government’s response stated in part:
The law of armed conflict governs the conduct of armed conflict and related detention operations, and permits lawful and unlawful enemy combatants to be detained until the end of active hostilities without charges, trial, or access to counsel.
• Combatants may be detained to prevent them from taking up arms against the United States.
• This is the principal reason for Guantánamo detention, an important point which the Report questions and disregards.
• It is also the reason why the United States has given the International Committee of the Red Cross, rather than human rights rapporteurs, unimpeded access to the detainees at Guantánamo.
Prisoners of war may be detained until the end of active hostilities, and in recognition of battlefield conditions, investigation and prosecution of combatant detainees is not required unless they are charged with a crime. The Report does not question this well-established precept of international humanitarian law, yet nevertheless assails the United States for applying a similar detention regime to unlawful combatants, who are not eligible for POW status due to their failure to heed the basic law of war. The approach called for by the Report is unprecedented, and indeed would turn international humanitarian law on its head by affording greater protections to unlawful combatants than to lawful ones. This is not, and cannot be, the law. To the contrary, it is the view of the United States Government that we cannot have an international legal system in which honorable soldiers who abide by the law of armed conflict and are captured on the battlefield may be detained and held until the end of a war without access to courts or counsel, but terrorist combatants who violate those very laws must be given special privileges or released and allowed to continue their belligerent or terrorist activities. Such a legal regime would signal to the international community that it is acceptable for armies to behave like terrorists.
In summary, the law of war applies to the conduct of war and related detention operations. The law of war allows the United States – and any other country engaged in armed conflict – to hold enemy combatants without charges or access to counsel for the duration of active hostilities. That is not to say that all detainees will be held until the overall end of hostilities. The United States – not because of any international law obligation – voluntarily has implemented measures to minimize the duration of detention. Our fight against Al Qaida is different from traditional armed conflicts in that it is not a state-to-state conflict, in which there generally is an identifiable conclusion of hostilities, after which each side releases those combatants it has detained. Sensitive to this reality, the United States evaluates each Guantánamo detainee individually, to determine whether he no longer poses a serious danger of returning to hostilities against us. This concept of an individual analysis has some support in historical practices that contemplate parole, as well as releases of enemy combatants held for extended periods, based on individualized determinations that the combatant does not present a continuing threat.
Detention is not an act of punishment but of security and military necessity. It serves the purpose of preventing combatants from continuing to take up arms against the United States. These are the long-standing, applicable rules of the law of war. 
United States, Reply of the Government of the United States of America to the Report of the Five UNCHR Special Rapporteurs on Detainees in Guantánamo Bay, Cuba, 10 March 2006, pp. 11, 17 and 24.
In September 2006, the US President spoke before an invited audience at the White House to announce the creation of new military commissions to try suspected terrorists, during which he also announced the transfer of 14 detainees from the Central Intelligence Agency (CIA) detention program (thus publicly revealing that such a program existed) into military custody:
To win the war on terror, we must be able to detain, question, and, when appropriate, prosecute terrorists captured here in America, and on the battlefields around the world.
After the 9/11 attacks, our coalition launched operations across the world to remove terrorist safe havens, and capture or kill terrorist operatives and leaders. Working with our allies, we’ve captured and detained thousands of terrorists and enemy fighters in Afghanistan, in Iraq, and other fronts of this war on terror. These enemy – these are enemy combatants, who were waging war on our nation. We have a right under the laws of war, and we have an obligation to the American people, to detain these enemies and stop them from rejoining the battle.
Most of the enemy combatants we capture are held in Afghanistan or in Iraq, where they’re questioned by our military personnel. Many are released after questioning, or turned over to local authorities – if we determine that they do not pose a continuing threat and no longer have significant intelligence value. Others remain in American custody near the battlefield, to ensure that they don’t return to the fight.
In some cases, we determine that individuals we have captured pose a significant threat, or may have intelligence that we and our allies need to have to prevent new attacks. Many are al Qaeda operatives or Taliban fighters trying to conceal their identities, and they withhold information that could save American lives. In these cases, it has been necessary to move these individuals to an environment where they can be held secretly [sic], questioned by experts, and – when appropriate – prosecuted for terrorist acts.
[I]n addition to the terrorists held at Guantánamo, a small number of suspected terrorist leaders and operatives captured during the war have been held and questioned outside the United States, in a separate program operated by the Central Intelligence Agency. This group includes individuals believed to be the key architects of the September the 11th attacks, and attacks on the USS Cole, an operative involved in the bombings of our embassies in Kenya and Tanzania, and individuals involved in other attacks that have taken the lives of innocent civilians across the world. These are dangerous men with unparalleled knowledge about terrorist networks and their plans for new attacks. The security of our nation and the lives of our citizens depend on our ability to learn what these terrorists know.
Many specifics of this program, including where these detainees have been held and the details of their confinement, cannot be divulged. Doing so would provide our enemies with information they could use to take retribution against our allies and harm our country. I can say that questioning the detainees in this program has given us information that has saved innocent lives by helping us stop new attacks – here in the United States and across the world. Today, I’m going to share with you some of the examples provided by our intelligence community of how this program has saved lives; why it remains vital to the security of the United States, and our friends and allies; and why it deserves the support of the United States Congress and the American people.
This program has been subject to multiple legal reviews by the Department of Justice and CIA lawyers; they’ve determined it complied with our laws. This program has received strict oversight by the CIA’s Inspector General. A small number of key leaders from both political parties on Capitol Hill were briefed about this program. All those involved in the questioning of the terrorists are carefully chosen and they’re screened from a pool of experienced CIA officers. Those selected to conduct the most sensitive questioning had to complete more than 250 additional hours of specialized training before they are allowed to have contact with a captured terrorist.
Some may ask: Why are you acknowledging this [CIA] program now? There are two reasons why I’m making these limited disclosures today. First, we have largely completed our questioning of the men – and to start the process for bringing them to trial, we must bring them into the open. Second, the Supreme Court’s recent decision Hamdan v. Rumsfeld, 548 US 557 (2006)] has impaired our ability to prosecute terrorists through military commissions, and has put in question the future of the CIA program. In its ruling on military commissions, the Court determined that a provision of the Geneva Conventions known as “Common Article Three” applies to our war with al Qaeda. This article includes provisions that prohibit “outrages upon personal dignity” and “humiliating and degrading treatment.” The problem is that these and other provisions of Common Article Three are vague and undefined, and each could be interpreted in different ways by American or foreign judges. And some believe our military and intelligence personnel involved in capturing and questioning terrorists could now be at risk of prosecution under the War Crimes Act – simply for doing their jobs in a thorough and professional way.
This is unacceptable. Our military and intelligence personnel go face to face with the world’s most dangerous men every day. They have risked their lives to capture some of the most brutal terrorists on Earth. And they have worked day and night to find out what the terrorists know so we can stop new attacks. America owes our brave men and women some things in return. We owe them their thanks for saving lives and keeping America safe. And we owe them clear rules, so they can continue to do their jobs and protect our people.
So today, I’m asking Congress to pass legislation that will clarify the rules for our personnel fighting the war on terror. First, I’m asking Congress to list the specific, recognizable offenses that would be considered crimes under the War Crimes Act – so our personnel can know clearly what is prohibited in the handling of terrorist enemies. Second, I’m asking that Congress make explicit that by following the standards of the Detainee Treatment Act our personnel are fulfilling America’s obligations under Common Article Three of the Geneva Conventions. Third, I’m asking that Congress make it clear that captured terrorists cannot use the Geneva Conventions as a basis to sue our personnel in courts – in U.S. courts. The men and women who protect us should not have to fear lawsuits filed by terrorists because they’re doing their jobs. 
United States, President George W. Bush, White House speech, President Discusses Creation of Military Commissions to Try Suspected Terrorists, 6 September 2006.
In 2007, in its comments on the concluding observations of the Human Rights Committee on the United States’ second and third periodic reports, the United States stated in response to a recommendation concerning the practice of secret detention:
The United States is engaged in an armed conflict with al Qaida, the Taliban, and their supporters. As part of this conflict, the United States captures and detains enemy combatants, and is entitled under the law of war to hold them until the end of hostilities. The law of war, and not the Covenant [1966 International Covenant on Civil and Political Rights], is the applicable legal framework governing these detentions.
In certain rare cases, the United States moves enemy combatants to secret locations. As the President of the United States stated in a September 6, 2006 speech, “Questioning the detainees in this program has given us information that has saved innocent lives by helping us stop new attacks – here in the United States and across the world.” …
All of the detainees who were in this secret interrogation program as of September 6, 2006, were moved to the Department of Defense detention facility at Guantánamo Bay. 
United States, Comments by the US government on the concluding observations of the Human Rights Committee, 12 February 2008, UN Doc. CCPR/C/USA/CO/3/Rev.1/Add.1, submitted 1 November 2007, p. 3.
[footnote in original omitted]
In February 2008, in a statement to Central Intelligence Agency (CIA) employees concerning the past use of Diego Garcia, the Director of the CIA stated:
The British Government announced today that the United States recently provided information on rendition flights through Diego Garcia – a UK territory in the Indian Ocean – that contradicted earlier data from us. Our government had told the British that there had been no rendition flights involving their soil or airspace since 9/11. That information, supplied in good faith, turned out to be wrong. In fact, on two different occasions in 2002, an American plane with a detainee aboard stopped briefly in Diego Garcia for refueling. Neither of those individuals was ever part of CIA’s high-value terrorist interrogation program. One was ultimately transferred to Guantánamo, and the other was returned to his home country. These were rendition operations, nothing more. There has been speculation in the press over the years that CIA had a holding facility on Diego Garcia. That is false. There have also been allegations that we transport detainees for the purpose of torture. That, too, is false. …
In late 2007, CIA itself took a fresh look at records on rendition flights. This time, the examination revealed the two stops in Diego Garcia. The refueling, conducted more than five years ago, lasted just a short time. But it happened. That we found this mistake ourselves, and that we brought it to the attention of the British Government, in no way changes or excuses the reality that we were in the wrong. 
United States, Statement by the Director of the Central Intelligence Agency, “Past Use of Diego Garcia”, 21 February 2008.
In 2009, in further comments to the Human Rights Committee on that committee’s concluding observations of the United States’ second and third periodic reports, the United States stated:
[O]n January 22, 2009, President Obama signed three executive orders relating to U.S. detention and interrogation policies broadly and the Guantánamo Bay detention facility specifically. Section 4 of Executive Order 13491 (“Ensuring Lawful Interrogations”) instructs the CIA to close any detention facilities that it operates and forbids the CIA from operating any detention facilities in the future. 
United States, Further comments by the US government on the concluding observations of the Human Rights Committee, 24 September 2009, UN Doc. CCPR/C/USA/CO/3/Rev.1/Add.2, submitted 24 July 2009.
In March 2010, the US State Department’s legal adviser stated:
1. Detention
With respect to detention, as you know, the last Administration’s detention practices were widely criticized around the world, and as a private citizen, I was among the vocal critics of those practices. This Administration and I personally have spent much of the last year seeking to revise those practices to ensure their full compliance with domestic and international law … [including] by ensuring that all detained individuals are being held pursuant to lawful authorities.
a. Treatment
… The President ordered CIA “black sites” closed and directed the Secretary of Defense to conduct an immediate review – with two follow-up visits by a blue ribbon task force of former government officials – to ensure that the conditions of detention at Guantánamo fully comply with Common Article 3 of the [1949] Geneva Conventions.
b. Legal Authority to Detain
Some have asked what legal basis we have for continuing to detain those held on Guantánamo and at Bagram. But as a matter of both international and domestic law, the legal framework is well-established. As a matter of international law, our detention operations rest on three legal foundations. First, we continue to fight a war of self-defense against an enemy that attacked us on September 11, 2001, and before, and that continues to undertake armed attacks against the United States. Second, in Afghanistan, we work as partners with a consenting host government. And third, the United Nations Security Council has, through a series of successive resolutions, authorized the use of “all necessary measures” by the NATO countries constituting the International Security Assistance Force (ISAF) to fulfill their mandate in Afghanistan. As a nation at war, we must comply with the laws of war, but detention of enemy belligerents to prevent them from returning to hostilities is a well-recognized feature of the conduct of armed conflict, as the drafters of Common Article 3 and [1977] Additional Protocol II recognized and as our own Supreme Court recognized in Hamdi v. Rumsfeld.
Second, unlike the last administration, as a matter of international law, this Administration has expressly acknowledged that international law informs the scope of our detention authority. Both in our internal decisions about specific Guantánamo detainees, and before the courts in habeas cases, we have interpreted the scope of detention authority authorized by Congress in the AUMF [The Authorization for the Use of Military Force (2001)] as informed by the laws of war. Those laws of war were designed primarily for traditional armed conflicts among states, not conflicts against a diffuse, difficult-to-identify terrorist enemy, therefore construing what is “necessary and appropriate” under the AUMF requires some “translation,” or analogizing principles from the laws of war governing traditional international conflicts.
Some commentators have criticized our decision to detain certain individuals based on their membership in a non-state armed group. But as those of you who follow the Guantánamo habeas litigation know, we have defended this position based on the AUMF, as informed by the text, structure, and history of the Geneva Conventions and other sources of the laws of war. Moreover, while the various judges who have considered these arguments have taken issue with certain points, they have accepted the overall proposition that individuals who are part of an organized armed group like al-Qaeda can be subject to law of war detention for the duration of the current conflict. In sum, we have based our authority to detain not on conclusory labels, like “enemy combatant,” but on whether the factual record in the particular case meets the legal standard. This includes, but is not limited to, whether an individual joined with or became part of al-Qaeda or Taliban forces or associated forces, which can be demonstrated by relevant evidence of formal or functional membership, which may include an oath of loyalty, training with al-Qaeda, or taking positions with enemy forces. Often these factors operate in combination. While we disagree with the International Committee of the Red Cross on some of the particulars, our general approach of looking at “functional” membership in an armed group has been endorsed not only by the federal courts, but also is consistent with the approach taken in the targeting context by the ICRC in its recent study on Direct Participation in Hostilities (DPH).  
United States, Speech by the legal adviser, US Department of State, “The Obama Administration and International Law”, given at the Annual Meeting of the American Society of International Law, Washington DC, 25 March 2010.
[emphasis in original]
In May 2010, the US President issued the 2010 National Security Strategy, which stated:
Legal Aspects of Countering Terrorism. The increased risk of terrorism necessitates a capacity to detain and interrogate suspected violent extremists, but that framework must align with our laws to be effective and sustainable. … For detainees who cannot be prosecuted – but pose a danger to the American people – we must have clear, defensible, and lawful standards. We must have fair procedures and a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified. And keeping with our Constitutional system, it will be subject to checks and balances. The goal is an approach that can be sustained by future Administrations, with support from both political parties and all three branches of government. 
United States, Report by the President of the United States, “2010 National Security Strategy”, The White House, Washington DC, 26 May 2010, p. 36.
In November 2010, in responding to the recommendations made by the Working Group of the UN Human Rights Council’s Universal Periodic Review of US human rights records, the US Department of State’s legal adviser stated:
Most of these recommendations referred to our country’s continuing armed conflicts in Afghanistan, Iraq, and against Al Qaeda and associated forces. The Obama Administration abides by all applicable law in these armed conflicts, including laws respecting … detention. … We defend the legality under the laws of war of using detention to remove adversaries from the conflict. 
United States, Statement by the legal adviser, US Department of State, before the UN Human Rights Council, Geneva, 9 November 2010, p. 2.
The US Manual on Detainee Operations (2008) states:
Legal Considerations
a. As a subset of military operations, detainee operations must comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations …
c. The four Geneva Conventions of 1949 are fully applicable as a matter of international law to all military operations that qualify as international armed conflicts … The principles reflected in these treaties are considered customary international law, binding on all nations during international armed conflict. Although often referred to collectively as the “Geneva Conventions,” the specific treaties are:
(4) The [1949] Geneva Convention [IV] … This convention deals with the protection of civilians who find themselves under the control of an enemy nation (normally during a period of belligerent occupation). It regulates the treatment of such civilians, including establishing procedures for the deprivation of liberty (arrest, internment, assigned residence). 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. I-2–I-3.
The manual also states:
Civilian Internee … [is a] civilian who is interned during an armed conflict, occupation, or other military operation for security reasons, for protection, or because he or she has committed an offense against the detaining power. Such individuals, unless they have committed acts for which they are considered unlawful combatants, generally qualify for protected status IAW [in accordance with] the GC [1949 Geneva Conventions], which also establishes procedures that must be observed when depriving such civilians of their liberty. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, p. I-5.
In July 2004, the US Secretary of Defense issued a memorandum to the Secretary of the Navy that ordered the establishment of a Combatant Status Review Tribunal (CSRT) process for enemy combatants detained at Guantánamo Bay Naval Base, Cuba:
This Order applies only to foreign nationals held as “enemy combatants” in the control of the Department of Defense at the Guantánamo Bay Naval Base, Cuba (“detainees”).
a. Enemy Combatant. For purposes of the Order, the term “enemy combatant” shall mean 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. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces. Each detainee subject to this Order has been determined to be an enemy combatant through multiple levels of reviews by officers of the Department of Defense.
b. Notice. Within ten days after the date of this Order, all detainees shall be notified of the opportunity to contest designation as an enemy combatant in the proceeding described herein, of the opportunity to consult with and be assisted by a personal representative as described in paragraph (c), and of the right to seek a writ of habeas corpus in the courts of the United States.
c. Personal Representative. Each detainee shall be assigned a military officer, with the appropriate security clearance, as a personal representative for the purpose of assisting the detainee in connection with the review process described herein. The personal representative shall be afforded the opportunity to review any reasonably available information in the possession of the Department of Defense that may be relevant to a determination of the detainee’s designation as an enemy combatant, including any records, determinations, or reports generated in connection with earlier determinations or reviews, and to consult with the detainee concerning that designation and any challenge thereto. The personal representative may share any information with the detainee, except for classified information, and may participate in the Tribunal proceeding as provided in paragraph (g)(4).
d. Tribunals. Within 30 days after the detainee’s personal representative has been afforded the opportunity to review the reasonably available information in the possession of the Department of Defense and had an opportunity to consult with the detainee, a Tribunal shall be convened to review the detainee’s status as an enemy combatant.
e. Composition of Tribunal. A Tribunal shall be composed of three neutral commissioned officers of the U.S. Armed Forces, each of whom possesses the appropriate security clearance and none of whom was involved in the apprehension, detention, interrogation, or previous determination of status of the detainee. One of the members shall be a judge advocate. The senior member (in the grade of 0–5 and above) shall serve as President of the Tribunal. Another non-voting officer, preferably a judge advocate, shall serve as the Recorder and shall not be a member of the Tribunal.
f. Convening Authority. The Convening Authority shall be designated by the Secretary of the Navy. The Convening Authority shall appoint each Tribunal and its members, and a personal representative for each detainee. The Secretary of the Navy, with the concurrence of the General Counsel of the Department of Defense, may issue instructions to implement this Order. 
United States, Deputy Secretary of Defense, Paul Wolfowitz, Memorandum for The Secretary of the Navy, Order Establishing Combatant Status Review Tribunal, 7 July 2004.
In July 2004, and in response to a Deputy Secretary of Defense Order of 7 July 2004 that had established a Combatant Status Review Tribunal (CSRT) Process, the US Secretary of the Navy issued a memorandum on the Implementation of CSRT Procedures for Enemy Combatants detained at Guantánamo Bay Naval Base, Cuba:
[The Deputy Secretary of Defense Order of 7 July 2004] has established a Combatant Status Review Tribunal (CSRT) process to determine, in a fact-based proceeding, whether the individual detained by the Department of Defense at the US Naval Base Guantánamo Bay, Cuba, are properly classified as enemy combatants and to permit each detainee the opportunity to contest such designation. The Secretary of the Navy has been appointed to operate and oversee this process.
The Combatant Status Review Tribunal process provides a detainee: the assistance of a Personal Representative; an interpreter if necessary; an opportunity to review unclassified information relating to the basis for his detention; the opportunity to appear personally to present reasonably available information relevant to why he should not be classified as an enemy combatant; the opportunity to question witnesses testifying at the Tribunal; and to the extent they are reasonably available, the opportunity to call witnesses on his behalf.
The CSRT Process, contained in Enclosure 1 to the 29 July memorandum, states:
This process will provide a non-adversarial proceeding to determine whether each detainee in the control of the Department of Defense at the Guantánamo Bay Naval Base, Cuba, meets the criteria to be designated as an enemy combatant, defined in [Deputy Secretary of Defense Order of 7 July 2004] as follows:
An “enemy combatant” for purposes of this order shall mean an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.
Each detainee whose status will be reviewed by a Tribunal has previously been determined, since capture, to be a combatant through multiple levels of review by military officers and officials of the Department of Defense.
The Director, CSRT, shall convene Tribunals pursuant to this implementing directive to conduct such proceedings as necessary to make a written assessment as to each detainee’s status as an enemy combatant. Each tribunal shall determine whether the preponderance of the evidence supports the conclusion that each detainee meets the criteria to be designated as an enemy combatant.
Adoption of the procedures outlined in this directive is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, instrumentalities or entities, its officers, employees or agents, or any other person. 
United States, Secretary of the Navy, Gordon England, Memorandum, Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants detained at Guantánamo Bay Naval Base, Cuba, 29 July 2004.
In September 2004, the US Secretary of the Navy, acting in his capacity as Designated Civilian Official, Administrative Review of the Detention of Enemy Combatants at Guantánamo Bay Detention Facility, issued a memorandum regarding the Administrative Review procedures to be followed at Guantánamo:
In accordance with the policy guidelines set by the Secretary of Defense, the Administrative Review Procedures will encompass an administrative proceeding for consideration of all relevant and reasonably available information to determine whether the enemy combatant represents a continuing threat to the US or its allies in the ongoing armed conflict against al Qaida and its affiliates and supporters (e.g., Taliban), and whether there are other factors that could form the basis for continued detention (e.g., the enemy combatant’s intelligence value and any law enforcement interest in the detainee). The proceeding will result in a recommendation to release, transfer, or continue to detain each enemy combatant. This process is non-adversarial. It provides an enemy combatant the opportunity to review unclassified information relating to his continued detention, and to appear personally to present information relevant to his continued detention, transfer or release.
The Administrative Review Procedures were established [and subsequently amended] to permit annual reviews of DoD [Department of Defense] detainees in the Global war on Terrorism at US Naval Base Guantánamo Bay, Cuba, except those whom the President has determined to be subject to a Military Commission … until the disposition of any charges against them or by the service of any sentence imposed by a Military Commission. The Administrative Review Procedures involve military authority exercised in the field in time of war. These proceedings are not governed by the Federal Rules of Evidence or equivalent state evidentiary rules. 
United States, Department of Defense, Designated Civilian Official, Administrative Review of the Detention of Enemy Combatants at Guantánamo Bay Detention Facility, Gordon England, Memorandum, Implementation of Administrative Review Procedures for Enemy Combatants Detained at US Naval Base Guantánamo Bay, Cuba, 14 September 2004.
In July 2006, the US Deputy Secretary of Defense, Gordon England, issued a memorandum regarding the Revised Implementation of Administrative Review Procedures for Enemy Combatants Detained at US Naval Base Guantánamo Bay, Cuba. These procedures amended those promulgated in the Department of Defense Memorandum, Implementation of Administrative Review Procedures for Enemy Combatants Detained at US Naval Base Guantánamo Bay, Cuba, 14 September 2004, through the incorporation of requirements contained within the Detainee Treatment Act of 2005:
[The Detainee Treatment Act of 2005] requires that the procedures governing the Administrative Review process provide for periodic review of any new evidence that may become available relating to the enemy combatant status of a detainee … [The Detainee Treatment Act of 2005] also requires that the procedures governing the Administrative Review process ensure that, in making a determination of a detainee’s disposition, an Administrative Review Board (ARB), to the extent practicable, assess whether any statement derived from or relating to such a detainee was obtained as a result of coercion and the probative value, if any, of such statement. 
United States, Department of Defense, Deputy Secretary of Defense, Gordon England, Memorandum, Revised Implementation of Administrative Review Procedures for Enemy Combatants Detained at US Naval Base Guantánamo Bay, Cuba, 14 July 2006.
In July 2006, the US Deputy Secretary of Defense, Gordon England, issued a memorandum on the Implementation of Combatant Status Review Tribunal (CSRT) Procedures for Enemy Combatants Detained at US Naval Base Guantánamo Bay, Cuba. This memorandum amended a memorandum on the same subject that had been issued by Mr England on 29 July 2004, in his then capacity as Secretary of the Navy. The amendments, which incorporated requirements contained within the Detainee Treatment Act of 2005 into the text of the original memorandum, stated:
[The Detainee Treatment Act of 2005] requires that the procedures governing the CSRT process provide for periodic review of any new evidence that may become available relating to the enemy combatant status of a detainee … [The Detainee Treatment Act of 2005] also requires that the procedures governing the CSRT process ensure that, in making a determination of a detainee’s status, a CSRT, to the extent practicable, assess whether any statement derived from or relating to such a detainee was obtained as a result of coercion and the probative value, if any, of such a statement. 
United States, Deputy Secretary of Defense, Gordon England, Memorandum, Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants detained at US Naval Base Guantánamo Bay, Cuba, 14 July 2006.
In the Bismullah case in 2007, a writ of habeas corpus appeal involving eight detainees at the Guantánamo Bay Naval Base (each petitioner seeking review of the determination by a Combatant Status Review Tribunal (CSRT) that he is an “enemy combatant”), the US Court of Appeals for the District of Columbia Circuit stated:
In order to review a Tribunal’s determination that, based upon a preponderance of the evidence, a detainee is an enemy combatant, the court must have access to all the information available to the Tribunal. We therefore hold that, contrary to the position of the Government, the record on review consists of all the information a Tribunal is authorized to obtain and consider, pursuant to the procedures specified by the Secretary of Defense, hereinafter referred to as Government Information and defined by the Secretary of the Navy as “such reasonably available information in the possession of the U.S. Government bearing on the issue of whether the detainee meets the criteria to be designated as an enemy combatant,” which includes any information presented to the Tribunal by the detainee or his Personal Representative.
In addition, we must implement such measures to govern these proceedings as are necessary to enable us to engage in meaningful review of the record as defined above. Therefore, we will enter a protective order adopting a presumption, as proposed by the petitioners, that counsel for a detainee has a “need to know” the classified information relating to his client’s case, except that the Government may withhold from counsel, but not from the court, certain highly sensitive information. 
United States, Court of Appeals for the District of Columbia Circuit, Bismullah case, Judgment, 20 July 2007.
In March 2003, the US Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice, wrote a memorandum to William J. Haynes II, General Counsel of the Department of Defense, which provided a legal analysis governing the military interrogation of alien “unlawful combatants” held outside the United States. The memorandum stated in part:
Two constitutional provisions that might be thought to extend to interrogations – the Fifth and Eighth Amendments – do not apply here. The Fifth Amendment provides in relevant part that “[n]o person … shall be deprived of life, liberty, or property, without due process of law.” … The Eighth Amendment bars the “inflict[ion]” of “cruel and unusual punishments.” … These provisions, however, do not regulate the interrogation of alien enemy combatants outside the United States during an international armed conflict. This is clear as a matter of the text and purpose of the Amendments, as they have been interpreted by the federal courts.
We conclude below that the Fifth Amendment Due Process Clause is inapplicable to the conduct of interrogations of alien enemy combatants held outside the United States for two independent reasons. First, the Fifth Amendment Due Process Clause does not apply to the President’s conduct of a war. Second, even if the Fifth Amendment applied to the conduct of war, the Fifth Amendment does not apply extraterritorially to aliens who have no connection to the United States.
If each time the President captured and detained enemy aliens outside the United States, those aliens could bring suit challenging the deprivation of their liberty, such a result would interfere with and undermine the President’s capacity to protect the Nation and to respond to the exigencies of war.
[E]ven if the Fifth Amendment applied to enemy combatants in wartime, it is clear that that the Fifth Amendment does not operate outside the United States to regulate the Executive’s conduct toward aliens. The Supreme Court has squarely held that the Fifth Amendment provides no rights to non-citizens who have no established connection to the country and who are held outside sovereign United States territory. Rasul v. Bush, 215 F. Supp. 2d 55, 72 n.16 (D.D.C. 2002) (“The Supreme Court in Eisentrager, Verdugo-Urquidez, and Zadvydas, and the District of Columbia Circuit in Harbury, have all held that there is no extraterritorial application of the Fifth Amendment to aliens.”) .
[T]he President’s power to detain and interrogate enemy combatants arises out of his constitutional authority as Commander in Chief. Any construction of criminal laws that regulated the President’s authority as Commander in Chief to determine the interrogation and treatment of enemy combatants would raise serious constitutional questions whether Congress had intruded on the President’s constitutional authority. Moreover, we do not believe that Congress enacted general criminal provisions such as the prohibitions against assault, maiming, interstate stalking, and torture pursuant to any express authority that would allow it to infringe on the President’s constitutional control over the operation of the Armed Forces in wartime. In our view, Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. In fact, the general applicability of these statutes belies any argument that these statutes apply to persons under the direction of the President in the conduct of war.
Under our Constitution, the sovereign right of the United States on the treatment of enemy combatants is reserved to the President as Commander-in-Chief. In light of the long history of discretion given to each nation to determine its treatment of unlawful combatants, to construe these statutes to regulate the conduct of the United States toward such combatants would interfere with a well established prerogative of the sovereign. While the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12,1949, 6 U.S.T. 3316, T.I.A.S. 3364 (“GPW”), imposes restrictions on the interrogations of prisoners of war, it does not provide prisoner of war status to those who are unlawful combatants. See Treaties (Ind Laws Memorandum at 8–9. Those restrictions therefore would not apply to the interrogations of unlawful belligerents such as al Qaeda or Taliban members. 
United States, Department of Justice, Office of Legal Counsel, John C. Yoo, Deputy Assistant Attorney General, Memorandum for William J. Haynes II, General Counsel of the Department of Defense, Military Interrogation of Alien Unlawful Enemy Combatants Held Outside the United States, 14 March 2003.
In June 2004, the US Department of Defense issued a statement regarding the establishment of an administrative review of the continued detention of enemy combatants at Guantánamo Bay Naval Base, Cuba. Entitled “Navy Secretary to Oversee Enemy Combatant Admin Review”, it stated:
The Department of Defense announced today that the Secretary of the Navy, Gordon R. England, has been named the designated civilian official to oversee the annual administrative review of the continued detention of enemy combatants at Guantánamo Bay Naval Base, Cuba. As the designated civilian official, England will operate and oversee the review process to assess whether each detainee held by the Department of Defense at Guantánamo should be released, transferred or should continue to be detained.
During the review, each detainee will have an opportunity to appear in person before a board of three military officers and provide factual data to support his release. The detainee will be provided a military officer to assist him. In addition, the review board will accept written information from the family and national government of the detainee. Based on all of this information, as well as submissions by other U.S. government agencies, the board will make a recommendation to England, who will decide whether to release, transfer or continue to detain the individual.
England has assembled a joint civilian and military team that is developing a detailed, comprehensive process to expedite the review of detainee records and establish review boards in the near future. This process will provide an annual review of each enemy combatant and will assist DoD [Department of Defense] in fulfilling its commitment to help ensure no one is detained any longer than is warranted, and that no one is released who remains a threat to our nation’s security.  
United States, Department of Defense, Office of the Assistant Secretary of Defense (Public Affairs), News Release, Navy Secretary to Oversee Enemy Combatant Admin Review, 23 June 2004.
The US Field Manual (1956) reproduces Article 43 of the 1949 Geneva Convention IV. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 282.
With respect to situations of occupation, the manual uses the same wording as Article 78 of the 1949 Geneva Convention IV and specifies: “‘Competent bodies’ to review the internment or assigned residence of protected persons may be created with advisory functions only, leaving the final decision to a high official of the Government.” 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 433.
The US Air Force Pamphlet (1976) provides, regarding the internment or placing in assigned residence of protected persons, that if such internment is maintained, the internee is entitled to a periodic review of his or her case by an appropriate court or administrative board at least twice yearly. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 14-5.
The Pamphlet further states: “Persons placed in internment or assigned residence in occupied territory are entitled to a review or reconsideration by a ‘competent body’”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 14-7.
The US Detainee Treatment Act (2005) states:
Sec. 1005. Procedure for Status Review of Detainees Outside the United States.
(e) Judicial Review of Detention of Enemy Combatants
(1) In General – Section 2241 of title 28, United States Code, is amended by adding at the end the following:
(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider–
(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantánamo Bay, Cuba; or
(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantánamo Bay, Cuba, who–
(A) is currently in military custody; or
(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant. 
United States, Detainee Treatment Act, 2005, Title X of Public Law 109-148 (the 2006 Department of Defense Appropriations Act), 119 Stat 2680, 30 December 2005, § 1005(e)(1).
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
Sec. 5. Treaty Obligations Not Establishing Grounds for Certain Claims
“(a) IN GENERAL. – No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, pp. 120 Stat. 2631 and 2632, Sec. 5(a).
The Military Commissions Act further states:
Sec. 7. Habeas Corpus Matters
“(a) IN GENERAL. – Section 2241 of title 28, United States Code, is amended by striking both the subsection (e) added by section 1005(e)(1) of Public Law 109–148 (119 Stat. 2742) and the sub section (e) added by added by section 1405(e)(1) of Public Law 109–163 (119 Stat. 3477) and inserting the following new subsection (e):
“(e)(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) and (3) 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. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, pp. 120 Stat. 2635 and 2636, Sec. 7(a).
In 2009, the US President issued Executive Order 13492, Closure of Guantánamo Detention Facilities, which stated:
By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to effect the appropriate disposition of individuals currently detained by the Department of Defense at the Guantánamo Bay Naval Base (Guantánamo) and promptly to close detention facilities at Guantánamo, consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows:
Sec. 2. Findings.
(c) The individuals currently detained at Guantánamo have the constitutional privilege of the writ of habeas corpus. Most of those individuals have filed petitions for a writ of habeas corpus in Federal court challenging the lawfulness of their detention.
(d) It is in the interests of the United States that the executive branch undertake a prompt and thorough review of the factual and legal bases for the continued detention of all individuals currently held at Guantánamo, and of whether their continued detention is in the national security and foreign policy interests of the United States and in the interests of justice. …
Sec. 4. Immediate Review of All Guantánamo Detentions.
(a) Scope and Timing of Review. A review of the status of each individual currently detained at Guantánamo (Review) shall commence immediately. 
United States, Executive Order 13492, Closure of Guantánamo Detention Facilities, 2009, Sections 2(c) (d) and 4(a).
The Padilla case in December 2003, a habeas corpus appeal, involved a US citizen held in custody since May 2002 in connection with the September 2001 terrorist attacks in the United States. He had been denied contact with his counsel, family or any other non-military personnel. The appellate court held that, in the domestic context, the President’s inherent constitutional powers did not extend to the detention as an enemy combatant of an American citizen seized within the country away from a zone of combat:
The Constitution’s explicit grant of the powers authorized in the Offenses Clause, the Suspension Clause, and the Third Amendment, to Congress is a powerful indication that, absent express congressional authorization, the President’s Commander-in-Chief powers do not support Padilla’s confinement … The level of specificity with which the Framers allocated these domestic powers to Congress and the lack of any even near-equivalent grant of authority in Article II’s catalogue of executive powers compels us to decline to read any such power into the Commander-in-Chief Clause. In sum, while Congress – otherwise acting consistently with the Constitution – may have the power to authorize the detention of United States citizens under the circumstances of Padilla’s case, the President, acting alone, does not.
[T]he President, acting alone, possesses no inherent constitutional authority to detain American citizens seized within the United States, away from a zone of combat, as enemy combatants.
[W]e remand to the District Court with instructions to issue a writ of habeas corpus directing the Secretary of Defense to release Padilla from military custody within 30 days. 
United States, US Court of Appeals for the Second Circuit, Padilla case, Judgment, 18 December 2003.
In 2004, the case was appealed to the US Supreme Court, which held that the habeas corpus petition had been improperly filed: “The District of South Carolina, not the Southern District of New York, was the district court in which Padilla should have brought his habeas petition.” The judgment of the US Court of Appeals for the Second Circuit was reversed, and the case was remanded for an entry of an order of dismissal without prejudice. The Court did not decide the issue of whether the President had the power to detain a US citizen by classifying the detainee as an “enemy combatant”. 
United States, US Supreme Court, Padilla case, Judgment, 28 June 2004.
In 2005, in the Padilla case, in which the Government appealed a decision of the District Court for the District of South Carolina, which had found that the US President lacked the authority to detain the detainee (a US citizen who had trained with Al Qaeda) and that his detention was in violation of the Constitution and the laws of the United States, the Court of Appeals reversed that decision, ruling that the US President had the authority to detain Padilla without charges. The Court of Appeals stated:
We understand the plurality’s reasoning in Hamdi to be that the AUMF [Authorization for Use of Military Force Joint Resolution] authorizes the President to detain all those who qualify as “enemy combatants” within the meaning of the laws of war, such power being universally accepted under the laws of war as necessary in order to prevent the return of combatants to the battlefield during conflict. Given that Padilla qualifies as an enemy combatant under both the definition adopted by the Court in Quirin and the definition accepted by the controlling opinion in Hamdi [Hamdi v. Rumsfeld, 542 U.S. 507, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (2004)], his military detention as an enemy combatant by the President is unquestionably authorized by the AUMF as a fundamental incident to the President’s prosecution of the war against al Qaeda in Afghanistan.
Hamdi’s detention was an exercise of “necessary and appropriate force” within the meaning of the AUMF because “detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war.”. This reasoning simply does not admit of a distinction between an enemy combatant captured abroad and detained in the United States, such as Hamdi, and an enemy combatant who escaped capture abroad but was ultimately captured domestically and detained in the United States, such as Padilla.
Padilla also argues, and the district court held, that Padilla’s military detention is “neither necessary nor appropriate” because he is amenable to criminal prosecution …”
As to the fact that Padilla can be prosecuted, the availability of criminal process does not distinguish him from Hamdi. If the mere availability of criminal prosecution rendered detention unnecessary within the meaning of the AUMF, then Hamdi’s detention would have been unnecessary and therefore unauthorized, since he too was detained in the United States and amenable to criminal prosecution. We are convinced, in any event, that the availability of criminal process cannot be determinative of the power to detain, if for no other reason than that criminal prosecution may well not achieve the very purpose for which detention is authorized in the first place – the prevention of return to the field of battle. Equally important, in many instances criminal prosecution would impede the Executive in its efforts to gather intelligence from the detainee and to restrict the detainee’s communication with confederates so as to ensure that the detainee does not pose a continuing threat to national security even as he is confined – impediments that would render military detention not only an appropriate, but also the necessary, course of action to be taken in the interest of national security.
The Congress of the United States, in the Authorization for Use of Military Force Joint Resolution, provided the President all powers necessary and appropriate to protect American citizens from terrorist acts by those who attacked the United States on September 11, 2001. As would be expected, and as the Supreme Court has held, those powers include the power to detain identified and committed enemies such as Padilla, who associated with al Qaeda and the Taliban regime, who took up arms against this Nation in its war against these enemies, and who entered the United States for the avowed purpose of further prosecuting that war by attacking American citizens and targets on our own soil – a power without which, Congress understood, the President could well be unable to protect American citizens from the very kind of savage attack that occurred four years ago almost to the day. 
United States, US Court of Appeals for the Fourth Circuit, Padilla case, Judgment, 9 September 2005.
[emphasis in original]
In the Hamdi case in 2004, involving a US citizen being detained indefinitely as an “enemy combatant”, the US Supreme Court reversed the dismissal of a habeas corpus petition by a lower court, recognized the power of the government to detain “enemy combatants”, but ruled that detainees who are US citizens must have the ability to challenge their detention before a neutral decision-maker. On the matter of habeas corpus, the Court stated:
Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 164-165, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963) (“The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action”); see also United States v. Robel, 389 U.S. 258, 264, 19 L. Ed. 2d 508, 88 S. Ct. 419 (1967) (“It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties … which makes the defense of the Nation worthwhile”).
With due recognition of these competing concerns, we believe that neither the process proposed by the Government nor the process apparently envisioned by the District Court below strikes the proper constitutional balance when a United States citizen is detained in the United States as an enemy combatant. That is, “the risk of an erroneous deprivation” of a detainee’s liberty interest is unacceptably high under the Government’s proposed rule, while some of the “additional or substitute procedural safeguards” suggested by the District Court are unwarranted in light of their limited “probable value” and the burdens they may impose on the military in such cases. Mathews, 424 U.S., at 335, 47 L. Ed. 2d 18, 96 S. Ct. 893.
We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.
(The war power “is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties”). Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive’s discretion in the realm of detentions. See St. Cyr, 533 U.S., at 301, 150 L. Ed. 2d 347, 121 S. Ct. 2271 (“At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest”). Thus, while we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his Government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process. 
United States, Supreme Court, Hamdi case, Judgment, 28 June 2004.
In the Rasul case in 2004, involving various alien petitioners challenging the legality of their detention at the Guantánamo Bay Naval Base, Cuba, the US Supreme Court found that US courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantánamo Bay. On the matter of habeas relief, the Court stated:
The Court rejects respondents’ primary submission that these cases are controlled by Eisentrager’s [Johnson v. Eisentrager, 339 U.S. 763, 94 L. Ed. 1255, 70 S. Ct. 936] holding that a District Court lacked authority to grant habeas relief to German citizens captured by U.S. forces in China, tried and convicted of war crimes by an American military commission headquartered in Nanking, and incarcerated in occupied Germany. Reversing a Court of Appeals judgment finding jurisdiction, the Eisentrager Court found six critical facts: The German prisoners were (a) enemy aliens who (b) had never been or resided in the United States, (c) were captured outside U. S. territory and there held in military custody, (d) were there tried and convicted by the military (e) for offenses committed there, and (f) were imprisoned there at all times. 339 U.S., at 777, 94 L. Ed. 1255, 70 S. Ct. 936. Petitioners here differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against this country; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control. The Eisentrager Court also made clear that all six of the noted critical facts were relevant only to the question of the prisoners’ constitutional entitlement to habeas review.
In the end, the answer to the question presented is clear. Petitioners contend that they are being held in federal custody in violation of the laws of the United States. No party questions the District Court’s jurisdiction over petitioners’ custodians. Cf. Braden, 410 U.S., at 495, 35 L. Ed. 2d 443, 93 S. Ct. 1123. [28 USCS] Section 2241, by its terms, requires nothing more. We therefore hold that ß 2241 confers on the District Court jurisdiction to hear petitioners’ habeas corpus challenges to the legality of their detention at the Guantánamo Bay Naval Base.
As explained above, Eisentrager itself erects no bar to the exercise of federal court jurisdiction over the petitioners’ habeas corpus claims. It therefore certainly does not bar the exercise of federal-court jurisdiction over claims that merely implicate the “same category of laws listed in the habeas corpus statute.” But in any event, nothing in Eisentrager or in any of our other cases categorically excludes aliens detained in military custody outside the United States from the “‘privilege of litigation’” in U.S. courts. 321 F.3d, at 1139. The courts of the United States have traditionally been open to nonresident aliens. Cf. Disconto Gesellschaft v. Umbreit, 208 U.S. 570, 578, 52 L. Ed. 625, 28 S. Ct. 337 (1908) (“Alien citizens, by the policy and practice of the courts of this country, are ordinarily permitted to resort to the courts for the redress of wrongs and the protection of their rights”). And indeed, 28 U.S.C. ß 1350 [28 USCS ß 1350] explicitly confers the privilege of suing for an actionable “tort … committed in violation of the law of nations or a treaty of the United States” on aliens alone. The fact that petitioners in these cases are being held in military custody is immaterial to the question of the District Court’s jurisdiction over their nonhabeas statutory claims. 
United States, Supreme Court, Rasul case, Judgment, 28 June 2004.
[emphasis in original]
In 2005, in the In re Guantánamo Detainee cases, involving 11 coordinated habeas corpus civil actions brought against the US Government by various detainees being held at the US Naval Base at Guantánamo Bay, Cuba, the Court found that “CSRT [Combatant Status Review Tribunal] procedures are unconstitutional for failing to comport with the requirements of due process.”:
While the Court would have welcomed a clearer declaration in the Rasul opinion [Rasul v. Bush, 542 U.S. 466, 159 L. Ed. 2d 548, 124 S. Ct. 2686 (2004)] regarding the specific constitutional and other substantive rights of the petitioners, it does not interpret the Supreme Court’s decision as narrowly as the respondents suggest it should. To the contrary, the Court interprets Rasul in conjunction with other precedent, to require the recognition that the detainees at Guantánamo Bay possess enforceable constitutional rights.
In sum, there can be no question that the Fifth Amendment right asserted by the Guantánamo detainees in this litigation – the right not to be deprived of liberty without due process of law – is one of the most fundamental rights recognized by the U.S. Constitution.
Hamdi [Hamdi v. Rumsfeld, 542 U.S. 507, 159 L. Ed. 2d 578, 124 S. Ct. 2633 (2004)]was decided before the creation of the Combatant Status Review Tribunal, and the respondents contend in their motion to dismiss that were this Court to conclude that the detainees are entitled to due process under the Fifth Amendment, the CSRT proceedings would fully comply with all constitutional requirements. More specifically, the respondents claim that the CSRT regulations were modeled after Army Regulation 190-8 governing the determination of prisoner of war status, referenced in Hamdi, and actually exceed the requirements set forth by the Hamdi plurality. For example, respondents cite the facts that under CSRT rules, tribunal members must certify that they have not been involved in the “apprehension, detention, interrogation, or previous determination of status of the detainee[s],” that detainees are provided a “Personal Representative” to assist in the preparation of their cases, that the “Recorder” – that is, the person who presents evidence in support of “enemy combatant” status – must search for exculpatory evidence, that the detainee is entitled to an unclassified summary of the evidence against him, and that the tribunal’s decisions are reviewed by a higher authority. Motion to Dismiss at 34–35. Notwithstanding the procedures cited by the respondents, the Court finds that the procedures provided in the CSRT regulations fail to satisfy constitutional due process requirements in several respects.
The constitutional defects in the CSRT procedures can be separated into two categories. The first category consists of defects which apply across the board to all detainees in the cases before this Judge. Specifically, those deficiencies are the CSRT’s failure to provide the detainees with access to material evidence upon which the tribunal affirmed their “enemy combatant” status and the failure to permit the assistance of counsel to compensate for the government’s refusal to disclose classified information directly to the detainees. The second category of defects involves those which are detainee specific and may or may not apply to every petitioner in this litigation. Those defects include the manner in which the CSRT handled accusations of torture and the vague and potentially overbroad definition of “enemy combatant” in the CSRT regulations. While additional specific defects may or may not exist, further inquiry is unnecessary at this stage of the litigation given the fundamental deficiencies detailed below.
1. General Defects Existing in All Cases Before the Court: Failure to Provide Detainees Access to Material Evidence Upon Which the CSRT Affirmed Enemy Combatant Status and Failure to Permit the Assistance of Counsel
The CSRT reviewed classified information when considering whether each detainee presently before this Court should be considered an “enemy combatant,” and it appears that all of the CSRT’s decisions substantially relied upon classified evidence. No detainee, however, was ever permitted access to any classified information nor was any detainee permitted to have an advocate review and challenge the classified evidence on his behalf. Accordingly, the CSRT failed to provide any detainee with sufficient notice of the factual basis for which he is being detained and with a fair opportunity to rebut the government’s evidence supporting the determination that he is an “enemy combatant.”
2. Specific Defects That May Exist in Individual Cases: Reliance on Statements Possibly Obtained Through Torture or Other Coercion and a Vague and Overly Broad Definition of Enemy Combatant
Additional defects in the CSRT procedures support the denial of the respondents’ motion to dismiss at least some of the petitions, though these grounds may or may not exist in every case before the Court and though the respondents might ultimately prevail on these issues once the petitioners have been given an opportunity to litigate them fully in the habeas proceedings.
a. Reliance on Statements Possibly Obtained Through Torture or Other Coercion
The first of these specific grounds involves the CSRT’s reliance on statements allegedly obtained through torture or otherwise alleged to have been provided by some detainees involuntarily. The Supreme Court has long held that due process prohibits the government’s use of involuntary statements obtained through torture or other mistreatment …
b. Vague and Overly Broad Definition of Enemy Combatant
Although the government has been detaining individuals as “enemy combatants” since the issuance of the AUMF [Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001)] in 2001, it apparently did not formally define the term until the July 7, 2004 Order creating the CSRT. The lack of a formal definition seemed to have troubled at least the plurality of the Supreme Court in Hamdi, but for purposes of resolving the issues in that case, the plurality considered the government’s definition to be an individual who was “part of or supporting forces hostile to the United States or coalition partners’ in Afghanistan and who engaged in an armed conflict against the United States’ there.” 542 U.S. 507, 159 L. Ed. 2d 578, 124 S. Ct. 2633, 2639 (quoting Brief for the Respondents) (emphasis added). The Court agreed with the government that the AUMF authorizes the Executive to detain individuals falling within that limited definition, id., with the plurality explaining that “because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of necessary and appropriate force,’ Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.” Id. at 2641. The plurality cautioned, however, “that indefinite detention for the purpose of interrogation is not authorized” by the AUMF, and added that a congressional grant of authority to the President to use “necessary and appropriate force” might not be properly interpreted to include the authority to detain individuals for the duration of a particular conflict if that conflict does not take a form that is based on “longstanding law-of-war principles.” Id.
The definition of “enemy combatant” contained in the Order creating the CSRT is significantly broader than the definition considered in Hamdi. According to the definition currently applied by the government, an “enemy combatant” “shall mean 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. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.” July 7, 2004 Order at 1 (emphasis added). Use of the word “includes” indicates that the government interprets the AUMF to permit the indefinite detention of individuals who never committed a belligerent act or who never directly supported hostilities against the U.S. or its allies.
It may well turn out that after the detainee is given a fair opportunity to challenge his detention in a habeas proceeding, the legality of his detention as an “enemy combatant” will be upheld and he will continue to be held at Guantánamo Bay until the end of the war on terrorism or until the government determines he no longer poses a threat to U.S. security. It is also possible, however, that once given a fair opportunity to litigate his case, the detainee will establish that he is being indefinitely detained not because of anything he has done and not to prevent his return to any “battlefield,” metaphorical or otherwise, but simply because [TEXT REDACTED BY THE COURT] and the respondents’ motion to dismiss must therefore be denied. 
United States, District Court for the District of Columbia, In re Guantánamo Detainee cases, Judgment, 31 January 2005.
In 2005, in the Abdah case, involving 13 Yemeni nationals designated as “enemy combatants” at the Guantánamo Bay Naval Base (GTMO) in Cuba, who petitioned for a temporary restraining order to prevent their removal from the GTMO and rendition to the custody of another government, the Court granted the temporary restraining order. In doing so, it stated:
Were the Petitioners to be transferred to the control of a foreign country, they would effectively lose their rights to pursue their habeas claims in this country. The Court finds that their injury would be continued detention outside the jurisdiction of U.S. courts – courts that are actively reviewing the constitutionality of that very detention. While the Supreme Court has granted them a right of access to our court system, such a transfer would terminate that right, insofar as it sounds in habeas corpus, because U.S. courts would no longer have control over their warden. Presumably, the Petitioners would suffer no harm if the Government were to transfer them to Yemen for release; that is the goal of their habeas petitions. A transfer with continued indeterminate detention with no right of review or further court access poses a very different set of parameters. With or without the allegation of improper forms of interrogation in a foreign country, the Court concludes that a continuation of their detention without redress to assess its legality could constitute irreparable harm to the Petitioners. 
United States, District Court for the District of Columbia, Abdah case, Judgment, 12 March 2005.
In 2005, in the Quasim case, involving two Ouiger detainees held at the Guantánamo Bay Naval Base in Cuba since June 2002, who had been classified by a Combatant Status Review Tribunal (CSRT) as “no longer enemy combatants” (NLECs), but had nonetheless been retained at Guantánamo because US authorities found no other country willing to accept them, the Court found:
As the Supreme Court noted in Hamdi, the authority to detain in wartime is grounded in the need to prevent captured individuals from returning to the field of battle. 542 U.S. at 518–21; see also Naqvi, Doubtful Prisoner-of-War Status, 84 Int’l Rev. Red Cross 571, 572 (2002) (“Captivity in war is ‘neither revenge, nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war’”) (quoting decision of Nuremberg Military Tribunal, reprinted in 41 Am. J. Int’l L. 172, 229 (1947)). Because of this limited purpose, the laws of war require that detention last no longer than the active hostilities. Hamdi, 542 U.S. at 521 (citing Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U.S.T. 3316, 3406, T.I.A.S. No. 3364 (“Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities”)). Nothing in this record establishes that the government has or could reasonably have a concern that these petitioners would return to the battlefield if released. Even if petitioners’ initial detention was lawful, however, and even assuming that some reasonable wind up period of detention was allowable, their continued detention for nine months after the CSRT found them to be NLEC’s far exceeds the presumptive limit of six months the Supreme Court applied in the analogous context of removable and excludable aliens detained under immigration statutes. See Zadvydas v. Davis, 533 U.S. 678, 121 S. Ct. 2491, 150 L. Ed. 2d 653 (2001) (presumptive limit to reasonable duration of post-removal-period detention under INA for removable alien is six months); Clark v. Martinez, 543 U.S. 371, 125 S. Ct. 716, 160 L. Ed. 2d 734 (2005) (six-month presumptive limit to detention applies to inadmissible aliens). The detention of these petitioners has by now become indefinite. This indefinite imprisonment at Guantánamo Bay is unlawful.
Despite this finding, the Court concluded that it could provide no relief, because it did not have the power to require their entry into the United States. 
United States, District Court for the District of Columbia, Qassim case, Judgment, 22 December 2005.
In the Boumediene case in June 2008, the US Supreme Court ruled 5–4 that the aliens held at the Guantánamo Bay naval base in Cuba and persons designated there as enemy combatants were entitled to the writ of habeas corpus protected in Article I, Section 9 of the US Constitution. The decision struck down section 7 of the Military Commissions Act (2006), but left intact the remainder of that Act as well as the Detainee Treatment Act (2005). The Court stated:
The United States has maintained complete and uninterrupted control of the [Guantánamo] bay for over 100 years. At the close of the Spanish-American War, Spain ceded control over the entire island of Cuba to the United States and specifically “relinquishe[d] all claim[s] of sovereignty … and title.” See Treaty of Paris, Dec. 10, 1898, U. S.-Spain, Art. I, 30 Stat. 1755, T. S. No. 343. From the date the treaty with Spain was signed until the Cuban Republic was established on May 20, 1902, the United States governed the territory “in trust” for the benefit of the Cuban people. Neely v. Henkel, 180 U. S. 109, 120 (1901) … And although it recognized, by entering into the 1903 Lease Agreement, that Cuba retained “ultimate sovereignty” over Guantánamo, the United States continued to maintain the same plenary control it had enjoyed since 1898. Yet the Government’s view is that the Constitution had no effect there, at least as to non-citizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.
Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgements are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).
These concerns have particular bearing upon the Suspension Clause question [The Suspension Clause is Article I, Section 9 of the US Constitution, which provides that “[t]he 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”] in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.
Based on this language from Eisentrager [Johnson v. Eisentrager, 339 U.S. 763 (1950), where the Supreme Court held that US courts had no jurisdiction over German war criminals held in a US-administered prison in Germany], and the reasoning in our other extraterritoriality opinions, we conclude that at least three factors are relevant in determining the reach of the Suspension Clause: (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.
Applying this framework, we note at the onset that the status of these detainees is a matter of dispute. The petitioners, like those in Eisentrager, are not American citizens. But the petitioners in Eisentrager did not contest, it seems, the Court’s assertion that they were “enemy alien[s].” Ibid. In the instant cases, by contrast, the detainees deny they are enemy combatants. They have been afforded some process in CSRT [Combatant Status Review Tribunals] proceedings to determine their status; but, unlike in Eisentrager, supra, at 766, there has been no trial by military commission for violations of the laws of war. The difference is not trivial. The records from the Eisentrager trials suggest that, well before the petitioners brought their case to this Court, there had been a rigorous adversarial process to test the legality of their detention. …
In comparison the procedural protections afforded to the detainees in the CSRT hearings are far more limited, and, we conclude, fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review. …
As to the second factor relevant to this analysis, the detainees here are similarly situated to the Eisentrager petitioners in that the sites of their apprehension and detention are technically outside the sovereign territory of the United States. As noted earlier, this is a factor that weighs against finding they have rights under the Suspension Clause. But there are critical differences between Landsberg Prison, circa 1950, and the United States Naval Station at Guantánamo Bay in 2008. Unlike its present control over the naval station, the United States’ control over the prison in Germany was neither absolute nor indefinite. … The Court’s holding in Eisentrager was thus consistent with the Insular Cases [several US Supreme Court cases concerning the status of territories acquired by the United States in the Spanish-American War (1898)], where it had held there was no need to extend full constitutional protections to territories the United States did not intend to govern indefinitely. Guantánamo Bay, on the other hand, is no transient possession. In every practical sense Guantánamo is not abroad; it is within the constant jurisdiction of the United States. See Rasul, 542 U.S., at 480; id., at 487 (KENNEDY, J., concurring in judgment).
As to the third factor, we recognize, as the Court did in Eisentrager, that there are costs to holding the Suspension Clause applicable in a case of military detention abroad. Habeas corpus proceedings may require expenditure of funds by the Government and may divert the attention of military personnel from other pressing tasks. While we are sensitive to these concerns, we do not find them dispositive. Compliance with any judicial process requires some incremental expenditure of resources. Yet civilian courts and the Armed Forces have functioned alongside each other at various points in our history. … The Government presents no credible arguments that the military mission at Guantánamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims. And in light of the plenary control the United States asserts over the base, none are apparent to us.
It is true that before today the Court has never held that non-citizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. … The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding.
We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantánamo Bay. 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 Clause. Cf. Hamdi, 542 U.S., at 564 (SCALIA, J., dissenting) (“[I]ndefinite imprisonment on reasonable suspicion is not an available option of treatment for those accused of aiding the enemy, absent a suspension of the writ”). This Court may not impose a de facto suspension by abstaining from these controversies. See Hamdan, 548 U.S., at 585, n. 16 (“[A]bstention is not appropriate in cases … in which the legal challenge ‘turn[s] on the status of the persons as to whom the military asserted its power’” (quoting Schlesinger v. Councilman, 420 U.S. 738, 759 (1975))). The MCA [Military Commissions Act (2006)] does not purport to be a formal suspension of the writ; and the Government, in its submissions to us, has not argued that it is. Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention. 
United States, Supreme Court, Boumediene case, Judgment, 12 June 2008, pp. 34–42.
The Court also stated:
Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ. 
United States, Supreme Court, Boumediene case, Judgment, 12 June 2008, pp. 1 and 2.
In the Boumediene case in November 2008, which followed the US Supreme Court’s decision of 12 June 2008 that aliens held in Guantánamo and persons designated as enemy combatants on that territory were entitled to the writ of habeas corpus [Boumediene v. Bush, 128 S. Ct. 229 (2008)], the US District Court for the District of Columbia granted a writ of habeas corpus to five of the six Guantánamo petitioners (including Lakhdar Boumediene) and denied the writ to a sixth petitioner (Belkacem Bensayah). The court memorandum order stated:
On November 14, 2008, counsel for petitioners and the Government presented nearly four and a half hours of closing arguments. Once again, because the information discussed in those arguments was overwhelmingly classified, they had to be held in a closed door session. As a result, neither the public nor the petitioners were able to listen to the arguments. At the end of the final arguments, the Court informed the parties that it would hold a public hearing today to announce its decision. A closed hearing will be held hereafter to discuss in greater detail the Court’s reasoning based on the classified evidence relevant to these six detainees.
On August 27, 2008, the Court issued its Case Management Order (“CMO”), setting forth the procedural framework for the litigation of these six detainees’ habeas petitions.
Under the CMO, the Government bears the burden of proving “by a preponderance of the evidence, the lawfulness of the petitioner’s detention.” (CMO at 3.) The Government argues that petitioners are lawfully detained because they are “enemy combatants,” who can be held pursuant to the Authorization for the Use of Military Force and the President’s powers as Commander in Chief.
The following definition of “enemy combatant”, governs the proceedings in this case:
An “enemy combatant”, is 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. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.
Boumediene v. Bush, 2008 WL 4722127, at *2 (Oct. 27, 2008 D.D.C.). [The CMO for this case] Accordingly, the question before this Court is whether the Government has shown by a preponderance of the evidence that each petitioner is being lawfully detained – i.e., that each is an “enemy combatant”, under the definition adopted by this Court.
The Government alleges that all six petitioners planned to travel to Afghanistan to take up arms against U.S. and allied forces and that such conduct constitutes “support” of al-Qaida under the “enemy combatant” definition adopted by this Court. …
To support its claim that petitioners had a plan to travel to Afghanistan to engage U.S. and allied forces, the Government relies exclusively on the information contained in a classified document from an unnamed source. This source is the only evidence in the record directly supporting each detainee’s alleged knowledge of, or commitment to, this supposed plan. And while the Government has provided some information about the source’s credibility and reliability, it has not provided the Court with enough information to adequately evaluate the credibility and reliability of this source’s information. …
… Because I cannot, on the record before me, adequately assess the credibility and reliability of the sole source information relied upon, for five of the petitioners, to prove an alleged plan by them to travel to Afghanistan to engage U.S. and coalition forces, the Government has failed to carry its burden with respect to these petitioners. Unfortunately, due to the classified nature of the Government’s evidence, I cannot be more specific about the deficiencies of the Government’s case at this time.
Suffice it to say, however, that while the information in the classified intelligence report, relating to the credibility and reliability of the source, was undoubtedly sufficient for the intelligence purposes for which it was prepared, it is not sufficient for the purposes for which a habeas court must now evaluate it. To allow enemy combatancy to rest on so thin a reed would be inconsistent with this Court’s obligation under the Supreme Court’s decision in Hamdi [Hamdi v. Rumsfeld, 542 US 507, 124 S. Ct. 2633 (2004)] to protect petitioners from the risk of erroneous detention. Hamdi, 542 U.S. at 530.
Having concluded that the Government has not met its burden with respect to the existence of a plan to travel to Afghanistan to engage U.S. and coalition forces by these five petitioners, the Court need not address the issue of whether commitment to such a plan would be enough, as a matter of law, to constitute “support” under the Court’s definition of “enemy combatant.” Thus, because the Government has failed to establish by a preponderance of the evidence the plan that is the exclusive basis for the Government’s claim that Messrs. Boumediene, Nechla, Boudella, Ait Idir, and Lahmar are enemy combatants, the Court must, and will, grant their petitions and order their release. 
United States, District Court for the District of Columbia, Boumediene case, Memorandum Order, 20 November 2008, pp. 2 and 6–11.
[emphasis in original; footnote in original omitted]
In the Munaf case in 2008, the US Supreme Court unanimously ruled that the essential legal protections do extend to American citizens held overseas by US military operating as part of a multinational force, but held that those protections provide the petitioners with no legal relief, i.e., the safeguards do not apply to the case of these two US citizens held in Baghdad. Federal district courts may not exercise their habeas jurisdiction to enjoin the United States from transferring individuals alleged to have committed crimes and detained within the territory of a foreign sovereign to that sovereign for criminal prosecution.
The Court, in first considering the question “do United States courts have jurisdiction over habeas corpus petitions filed on behalf of American citizens challenging their detention in Iraq by the MNF–I [Multinational Force-Iraq]?”, stated:
The United States acknowledges that Omar and Munaf [the petitioners] are American citizens held overseas in the immediate “physical custody” of American soldiers who answer only to an American chain of command.
[T]he Court has [previously] indicated that habeas jurisdiction can depend on citizenship. … [W]e decline … to preclude American citizens held overseas by American soldiers subject to a United States chain of command from filing habeas petitions.
We conclude that the habeas statute extends to American citizens held overseas by American forces operating subject to an American chain of command, even when those forces are acting as part of a multinational coalition. 
United States, Supreme Court, Munaf case, Judgment, 12 June 2008, pp. 2, 8 and 10–11.
In then considering the question “if such jurisdiction exists, may district courts exercise that jurisdiction to enjoin the MNF–I from transferring such individuals to Iraqi custody or allowing them to be tried before Iraqi courts?”, the court stated
We … approach … [this question] cognizant that “courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.” Department of Navy v. Egan, 484 U. S. 518, 530 (1988).
At the outset, the nature of the relief sought by the habeas petitioners suggests that habeas is not appropriate in these cases. Habeas is at its core a remedy for unlawful executive detention. Hamdi v. Rumsfeld, 542 U. S. 507, 536 (2004) (plurality opinion). The typical remedy for such detention is, of course, release. See, e.g., Preiser v. Rodriguez, 411 U. S. 475, 484 (1973) (“[T]he traditional function of the writ is to secure release from illegal custody”). But here the last thing petitioners want is simple release; that would expose them to apprehension by Iraqi authorities for criminal prosecution – precisely what petitioners went to federal court to avoid. At the end of the day, what petitioners are really after is a court order requiring the United States to shelter them from the sovereign government seeking to have them answer for alleged crimes committed within that sovereign’s borders.
The habeas petitioners do not dispute that they voluntarily traveled to Iraq, that they remain detained within the sovereign territory of Iraq today, or that they are alleged to have committed serious crimes in Iraq. Indeed, Omar and Munaf both concede that, if they were not in MNF–I custody, Iraq would be free to arrest and prosecute them under Iraqi law. …
Given these facts, our cases make clear that Iraq has a sovereign right to prosecute Omar and Munaf for crimes committed on its soil. …
This is true with respect to American citizens who travel abroad and commit crimes in another nation whether or not the pertinent criminal process comes with all the rights guaranteed by our Constitution. …
The habeas petitioners nonetheless argue that the Due Process Clause [a clause contained within both the Fifth and Fourteenth Amendments to the US Constitution] includes a “[f]reedom from unlawful transfer” that is “protected wherever the government seizes a citizen.” …. We disagree. Not only have we long recognized the principle that a nation state reigns sovereign within its own territory, we have twice applied that principle to reject claims that the Constitution precludes the Executive from transferring a prisoner to a foreign country for prosecution in an allegedly unconstitutional trial.
In the present cases, the habeas petitioners concede that Iraq has the sovereign authority to prosecute them for alleged violations of its law, yet nonetheless request an injunction prohibiting the United States from transferring them to Iraqi custody. But … habeas is not a means of compelling the United States to harbor fugitives from the criminal justice system of a sovereign with undoubted authority to prosecute them.
… [B]ecause Omar and Munaf are being held by United States Armed Forces at the behest of the Iraqi Government pending their prosecution in Iraqi courts, … release of any kind would interfere with the sovereign authority of Iraq “to punish offenses against its laws committed within its borders,” … . This point becomes clear given that the MNF–I, pursuant to its U.N. mandate, is authorized to “take all necessary measures to contribute to the maintenance of security and stability in Iraq,” … and specifically to provide for the “internment [of individuals in Iraq] where this is necessary for imperative reasons of security”.
To allow United States courts to intervene in an ongoing foreign criminal proceeding and pass judgment on its legitimacy seems at least as great an intrusion as the plainly barred collateral review of foreign convictions. …
… Those who commit crimes within a sovereign’s territory may be transferred to that sovereign’s government for prosecution. 
United States, Supreme Court, Munaf case, Judgment, 12 June 2008, pp. 11, 16–21 and 23.
[emphasis in original]
In the Bismullah case in 2009, the US Court of Appeals for the District of Columbia Circuit ruled that, as a consequence of the Boumediene case in 2008, which held that Guantánamo detainees were entitled to the writ of habeas corpus, the Detainee Treatment Act (2005) no longer authorized that court to review Combat Status Review Tribunal (CSRT) determinations concerning “enemy combatant” status. The Court stated:
The question that divides the parties is whether, now that the Supreme Court has held [Boumediene each detainee has a constitutional right to pursue a writ of habeas corpus, the availability of judicial review pursuant to DTA [Detainee Treatment Act] § 1005(e)(2) is consistent with the basic objective of the Congress that passed that provision.
In DTA § 1005(e)(2), the Congress provided that this court [“the United States Court of Appeals for the District of Columbia Circuit”] was to have “exclusive jurisdiction” to review the determination that a detainee is an enemy combatant. … DTA § 1005(e)(1), which was subsequently replaced by MCA [Military Commissions Act (2006)] § 7, eliminated the jurisdiction of all courts, including this one, over a petition for a writ of habeas corpus or any other action related to an alien’s detention at Guantánamo Bay “except as provided” by the jurisdiction granting provision of the DTA. …
In sum, the Congress wanted DTA review (1) to be conducted solely in this court, (2) limited in scope, and (3) to displace habeas corpus and any other action by which an alien held at Guantánamo might challenge his detention in court. Because the [US Supreme] Court held unconstitutional the provision eliminating habeas jurisdiction, DTA § 1005(e)(2) can no longer provide jurisdiction exclusively in this court over a detainee’s challenge to his detention as an enemy combatant; instead a detainee may challenge his detention in the District Court for the District of Columbia and get review of its decision in this court. Nor can DTA review now serve as a substitute – albeit more limited in scope – for habeas corpus. Therefore, DTA review, by opening an avenue of relief alongside the writ of habeas corpus, can no longer “function in a manner consistent with the intent of Congress.” Alaska Airlines, 480 U.S. at 685, 107 S.Ct. 1476.
In sum, we are confident the Congress would not have enacted DTA § 1005(e)(2) in the absence of the statutory provision banning the courts from exercising jurisdiction over a detainee’s habeas petition. Because the latter provision has been held unconstitutional, the former must also fall. Accordingly, we hold this court lacks subject matter jurisdiction over the detainees’ petitions for review of their status determinations by a CSRT. The petitions are, therefore, Dismissed. 
United States, Court of Appeals for the District of Columbia Circuit, Bismullah case, Judgment, 9 January 2009, pp. 1071–1073 and 1075.
[emphasis in original]
In the Al Odah case in 2009, the US Court of Appeals for the District of Columbia Circuit, following the US Supreme Court’s ruling in the Boumediene case in 2008, ruled that before the district court can compel the disclosure of classified information, it must first determine that such information is both relevant and material. The Court of Appeals stated:
We now review a 2005 order of the district court compelling disclosure of certain classified information to counsel for certain detainees held at Guantánamo Bay, Cuba. That discovery order was issued well before the Supreme Court, in its June 2008 opinion in Boumediene v. Bush, ––– U.S. ––––, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), ruled that the writ of habeas corpus is available to these detainees, …
In August 2004, the district court issued an order that incorporated the government’s proposed schedule for filing returns identifying the factual support for each petitioner’s detention as an enemy combatant. See In re Guantánamo Detainee Cases, 355 F.Supp.2d at 451. As factual support, the government submitted the records from the petitioners’ CSRT [Combat Status Review Tribunal] proceedings. Id. The government filed its returns on a rolling basis as the CSRT proceedings were completed, … Because each CSRT record contained classified information, the government filed redacted, unclassified versions on the public record and submitted the full, classified versions for the court’s in camera review. …
In November 2004, in response to the government’s notice indicating that it would not provide cleared counsel with all of the classified information in the factual returns submitted to the court, the petitioners’ counsel moved for “immediate access to the unredacted returns.”
The district court directed disclosure to petitioners’ counsel of the redacted classified information on the ground that it was “relevant to the merits of this litigation.” In the context of criminal proceedings, however, this court has held that “classified information is not discoverable on a mere showing of theoretical relevance in the face of the government’s classified information privilege.” United States v. Yunis, 867 F.2d 617, 623 (D.C.Cir.1989). … This standard applies with equal force to partially classified documents: “if some portion or aspect of a document is classified, a defendant is entitled to receive it only if it may be helpful to his defense.” Rezaq, 134 F.3d at 1142. Hence, before the district court may compel the disclosure of classified information, it must determine that the information is both relevant and material – in the sense that it is at least helpful to the petitioner’s habeas case. And because such disclosure is in the context of a habeas proceeding, the touchstone of which is the court’s “authority to conduct a meaningful review of both the cause for detention and the Executive’s power to detain,” Boumediene, 128 S.Ct. at 2269, the court must further conclude that access by petitioner’s counsel (pursuant to a court-approved protective order) is necessary to facilitate such review.
Moreover, even if it is true that the redacted information in the return “does not support a determination that the detainee is not an enemy combatant” – i.e., that the information is not directly exculpatory – that is not the only ground upon which information may be material in the habeas context. The court must still assess whether the information is actually inculpatory, because the government submitted the full habeas return in support of its contention that the detainee is an enemy combatant. Evaluation of that contention requires the court to assess the reliability of the sources upon which the return is based. Hence, indications of unreliability are themselves material. Cf. Boumediene , 128 S.Ct. at 2269 (noting that the most relevant deficiencies of the CSRTs as compared to habeas proceedings are “the constraints upon the detainee’s ability to rebut the factual basis for the Government’s assertion that he is an enemy combatant”).
[W]e now conclude that the habeas court should proceed by determining whether the classified information is material and counsel’s access to it is necessary to facilitate meaningful review, and whether no alternatives to access would suffice to provide the detainee with the meaningful opportunity required by Boumediene. 
United States, Court of Appeals for the District of Columbia Circuit, Al Odah case, Judgment, 6 March 2009, pp. 540, 543–545 and 548.
[emphasis in original]
In the Al Odah case in June 2010, in which the Guantánamo detainee appealed a district court’s denial of his petition for a writ of habeas corpus, the US Court of Appeals for the District of Columbia Circuit affirmed the decision of the lower court that the petition be denied. The Court first provided some legal background to habeas petitions:
The legal framework that governs habeas petitions from detainees held at Guantánamo Bay, Cuba has been thoroughly explained in Al-Bihani v. Obama, 590 F.3d 866, 869 (D.C.Cir.2010) and Awad v. Obama, No. 09–5351, 608 F.3d 1, 3–4 (D.C.Cir.2010). As relevant to this appeal, Boumediene v. Bush, 553 U.S. 723, 128. S.Ct. 2229, 171 L.Ed.2d 41 (2008), held that federal courts have jurisdiction over habeas petitions from individuals detained at Guantánamo Bay, Cuba. The Authorization for Use of Military Force, Pub.L. No. 107–40, 115 Stat. 224 (2001) (“AUMF”), provides:
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 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.
This gives the United States government the authority to detain a person who is found to have been “part of” al Qaeda or Taliban forces. See Awad, at 11–12; Al–Bihani, 590 F.3d at 871–72; see also Barhoumi v. Obama, 609 F.3d 416, 423–24 (D.C.Cir.2010). 
United States, Court of Appeals for the District of Columbia Circuit, Al Odah case, Judgment, 30 June 2010, pp. 9 and 10.
Regarding the appellant’s procedural challenges, the court stated:
[The appellant] makes two procedural challenges. … [T]he district court held both that the government had to meet its burden by a preponderance of the evidence and that it would admit hearsay evidence subject to review for reliability. [The appellant] argues that the preponderance of the evidence standard is unconstitutional and that the district court cannot admit hearsay evidence unless it complies with the Federal Rules of Evidence. …
[The appellant] argues that the government can deprive a person of his liberty only if it meets its evidentiary burden by clear and convincing evidence. But this argument fails under binding precedent in this circuit. It is now well-settled law that a preponderance of the evidence standard is constitutional in considering a habeas petition from an individual detained pursuant to authority granted by the AUMF. See Awad, at 10–11 (“A preponderance of the evidence standard satisfies constitutional requirements in considering a habeas petition from a detainee held pursuant to the AUMF.”); Al–Bihani, 590 F.3d at 878 (“Our narrow charge is to determine whether a preponderance standard is unconstitutional. Absent more specific and relevant guidance, we find no indication that it is.”); see also Barhoumi, at 422–23 (holding that under circuit precedent “a preponderance of the evidence standard is constitutional in evaluating a habeas petition from a detainee held at Guantánamo Bay, Cuba,” and that the detainee’s argument that “the Government should have been required to establish that [he] is lawfully detained under a standard of at least clear and convincing evidence” is “foreclosed by circuit precedent”) (internal quotation marks omitted).
[The appellant]’s second procedural argument fares no better. He argues that the Federal Rules of Evidence and the habeas corpus statute, 28 U.S.C. § 2241 et seq., restrict the situations in which a district court may admit hearsay evidence in considering a petition from a person detained pursuant to the AUMF. The law is against him. … [T]he Supreme Court in Hamdi Hamdi v. Rumsfeld, 542 U.S. 507, 533–34, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004)] stated that “[h]earsay … may need to be accepted as the most reliable available evidence from the Government” in this type of proceeding. 542 U.S. at 533–34, 124 S.Ct. 2633. We applied the teachings of Hamdi in Awad, in which we explicitly held that “[T]he fact that the district court generally relied on items of evidence that contained hearsay is of no consequence. To show error in the court’s reliance on hearsay evidence, the habeas petitioner must establish not that it is hearsay, but that it is unreliable hearsay.” Id. at 6–7; see also Barhoumi, at 422 (holding that under circuit precedent, “hearsay evidence is admissible in this type of habeas proceeding if the hearsay is reliable”) (internal quotation marks omitted); Al–Bihani, 590 F.3d at 879 (“[T]he question a habeas court must ask when presented with hearsay is not whether it is admissible … but what probative weight to ascribe to whatever indicia of reliability it exhibits.”). 
United States, Court of Appeals for the District of Columbia Circuit, Al Odah case, Judgment, 30 June 2010, pp. 13 and 14.
Regarding the appellant’s evidentiary challenges, the court stated:
[The appellant] makes several challenges to individual pieces of evidence. In considering these challenges to the individual pieces of evidence, we must keep in mind that the purpose of our inquiry is to determine whether, overall, the district court’s finding was supported by sufficient evidence. See Awad, at 6–7 (“We will begin with [the appellant]’s challenges to the individual items of evidence. In evaluating these challenges, we do not weigh each piece of evidence in isolation, but consider all of the evidence taken as a whole.”).
We have considered, and rejected, [the appellant]’s challenges to the individual pieces of evidence. The only remaining question is whether all the evidence before the district court was sufficient to support its finding that [the appellant] was “part of” the Taliban and al Qaeda forces. …
The district court considered all the evidence, rejected [the appellant]’s explanation of the evidence, and held that [he] was “part of” al Qaeda and Taliban forces. There was no error in this finding, under either a de novo or clear error standard of review. 
United States, Court of Appeals for the District of Columbia Circuit, Al Odah case, Judgment, 30 June 2010, pp. 15 and 16.
In conclusion, the court stated:
The law of this circuit is that a preponderance of the evidence standard is constitutional in considering a habeas petition from an alien detained pursuant to authority granted by the AUMF. Awad, at 10–11. Decisions of this court and of the Supreme Court have established that in this type of habeas proceeding, hearsay evidence is admissible if it is reliable. In our review of the record, we see strong support for the district court’s finding that [the appellant] was “part of” al Qaeda and Taliban forces in the fall of 2001. Accordingly, we affirm the district court’s denial of [the appellant]’s petition for a writ of habeas corpus. 
United States, Court of Appeals for the District of Columbia Circuit, Al Odah case, Judgment, 30 June 2010, p. 17.
In the Hammamy case in April 2009, the US District Court for the District of Columbia denied a writ of habeas corpus to a petitioner, detained at the Guantánamo Bay naval base, who had been captured in Pakistan by Pakistani authorities in April 2002 and transferred to US custody. Following court proceedings, conducted largely in camera due to the classified nature of much of the evidence, the memorandum order stated:
On November 28, 2008, the Court issued its Case Management Order (“CMO”) for the case. (Case Management Order, Nov. 28, 2008 …). That order was essentially a duplicate of the earlier CMO issued by the Court in the Boumediene v. Bush case, No. 04-cv-1 166, on August 27, 2008.
Under the CMO, the Government bears the burden of proving the lawfulness of the petitioner’s detention by a preponderance of the evidence. (CMO II.A.) The Government argues that petitioner … is lawfully detained because he is an “enemy combatant” who can be held pursuant to the Authorization for Use of Military Force [Pub. L. No. 107-40, §§ 1–2, 115 Stat. 224 (18 September 2001)] and the President’s powers as Commander-in-Chief. … The following definition of “enemy combatant,” previously adopted by this Court in the Boumediene cases, governs the proceedings in this case:
An “enemy combatant” is 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. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.
Boumediene v. Bush, 2008 WL 4722127, at *2 (D.D.C. Oct. 27, 2008). Accordingly, the question before this Court is whether the Government has shown by a preponderance of the evidence that petitioner … is being lawfully detained, i.e., that he is an “enemy combatant” under the definition adopted by this Court.
The Government contends that petitioner … is an enemy combatant under the definition established by this Court because he was “part of or supporting al Qaeda or Taliban forces.” In particular, the Government contends that petitioner …: (1) fought with Taliban or al Qaeda forces against U.S. and Afghan forces during the battle of Tora Bora, and (2) was a member of an Italy-based terrorist cell that provided support to various Islamic terrorist groups.
[B]ased on the evidence presented by the Government … and all reasonable inferences drawn therefrom, the Court concludes that petitioner … is being lawfully detained as an enemy combatant because it is more probable than not that he was part of or supporting Taliban or al Qaeda forces both prior to and after the initiation of U.S. hostilities in October 2001. Accordingly, the Court must, and will, DENY petitioner …’s petition for a writ of habeas corpus and will not order his release. 
United States, District Court for the District of Columbia, Hammamy case, Memorandum Order, 2 April 2009, pp. 3, 5–6 and 9.
[emphasis in original; footnote in original omitted]
In the Noriega case in April 2009, the US Court of Appeals for the Eleventh Circuit denied the appellant’s petition for a writ of habeas corpus. The Court held that not only does the Military Commissions Act (2006) preclude application of Article 118 of the 1949 Geneva Convention III (concerning repatriation of prisoners of war), but that the Convention does not prohibit extradition of prisoners of war to another State Party to the Geneva Conventions. The Court stated:
Extradition is an executive function derived from the President’s power to conduct foreign affairs, and the judiciary historically has played a limited role in extradition proceedings.
The United States’ authority to extradite [the appellant] comes from the United States’ extradition treaty with France. The federal extradition statute generally permits extradition when based on a treaty or convention. See 18 U.S.C. § 3184. Article 1 of the extradition treaty between the United States and France, entitled “Obligation to Extradite,” states that “[t]he Contracting States agree to extradite to each other, pursuant to the provisions of this Treaty, persons whom the competent authorities in the Requesting State have charged with or found guilty of an extraditable offense.” … The offense of which Noriega has been convicted in absentia in France, which corresponds to money laundering in the United States, undoubtedly falls within the purview of the treaty.
We find it unnecessary to resolve the question of whether the [1949] Geneva Conventions are self-executing, because it is within Congress’ power to change domestic law, even if the law originally arose from a self-executing treaty. … That is, because “‘an Act of Congress … is on a full parity with a treaty, … [and] when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null.”’ Breard v. Greene, 523 U.S. 371, 376, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998) … Thus, as discussed below, while the United States’ international obligations under the Geneva Conventions are not altered by the enactment of § 5 of the MCA [Military Commissions Act (2006)], Congress has superseded whatever domestic effect the Geneva Conventions may have had in actions such as this.
The parties’ dispute centers on the extent to which § 5 removes an individual’s ability to invoke the Conventions in a civil action against the United States, including a habeas proceeding. Section 5 of the MCA provides:
No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or … agent of the United States is a party as a source of rights in any court of the United States or its States or territories.
[The appellant] maintains that while under § 5 he cannot invoke the Third Geneva Convention as a source of individual rights in a judicial proceeding, “his right to enforce the provisions of the Geneva Convention against the Secretary of State, the Bureau of Prisons, or the Department of Justice [is] in no way abrogated.” (Appellant’s Reply Br. 15.) Thus, [the appellant] argues that article 118 of the Third Geneva Convention mandates that he be immediately repatriated to Panama, as his term of imprisonment in the United States is complete. See Third Geneva Convention art. 118 (“Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.”). The Government maintains that § 5(a) of the MCA precludes invocation of the Third Geneva Convention in this proceeding, as § 5(a) “codified the principle that the Geneva Conventions [are] not judicially enforceable by private parties,” and that regardless, the Third Geneva Convention authorizes his continued detention pending his extradition for criminal proceedings in France. (Appellees’ Br. 14 n.6, 15.)
Despite [the appellant]’s arguments to the contrary, it appears that [he] is invoking the Third Geneva Convention as a source of rights – the alleged right to immediate repatriation under article 118. While the legal effect of § 5 has not been widely discussed, the plain language of § 5 prohibits exactly this type of action. The district court appears to have read § 5 similarly, noting that § 5 “attempts to remove entirely the protections of the Convention from any person, even a citizen of the United States, in any American courtroom whenever the United States is involved.” Noriega II, 2007 WL 2947572, at *4. …
These readings of § 5(a) are consonant with the MCA’s legislative history, which further suggests that the express language of § 5 was understood to preclude individuals from invoking the Geneva Conventions as a source of rights. …
Accordingly, the plain language of § 5 of the MCA, which is clearly supported by its legislative history, precludes Noriega’s Geneva Convention claims. As the Geneva Convention is [the appellant]’s only substantive basis for relief he has failed to state a claim upon which habeas relief could be granted.
Nevertheless, assuming arguendo that the Third Geneva Convention is self-executing and that § 5 of the MCA does not preclude [the appellant]’s claim …
… [The appellant]’s habeas petition would also be denied because extradition would not violate [his] rights under the Third Geneva Convention. 
United States, Court of Appeals for the Eleventh Circuit, Noriega case, Judgment, 8 April 2009, pp. 1294–1297 and 1299.
[emphasis in original; footnotes in original omitted]
In the Al-Bihani case in January 2010, involving an appeal by a Yemeni citizen held in detention at the Guantánamo Bay naval base since 2002 for the denial of a writ of habeas corpus by a district court, the US Court of Appeals for the District of Columbia Circuit affirmed the order of the lower court, stating with regard to the detention powers granted to the US President by Congress:
[The appellant]’s many arguments present this court with two overarching questions regarding the detainees at the Guantánamo Bay naval base. … The second asks what procedure is due to detainees challenging their detention in habeas corpus proceedings. … 
United States, Court of Appeals for the District of Columbia Circuit, Al-Bihani case, Judgment, 5 January 2010, p. 5.
Regarding the appellant’s procedural challenge, the court stated:
He claims the habeas process afforded him by the district court fell short of the requirements of the Suspension Clause [The Suspension Clause of the US Constitution (Article I, Section 9, Clause 2), states: “The Privileges of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion of Invasion the public Safety may require it.”] and that his case should be remanded for rehearing in line with new, more protective procedures. The Supreme Court in Boumediene [Boumediene v. Bush, 128 S. Ct. 2229 (2008)] held detainees are entitled to the “fundamental procedural protections of habeas corpus.” 128 S. Ct. at 2277. The Boumediene Court refrained from identifying the full list of procedures that are fundamental, but it did say that a petitioner is entitled to “a meaningful opportunity to demonstrate that he is being held pursuant to the erroneous application or interpretation of relevant law,” and that “the habeas court must have the power to order the conditional release” of the petitioner. Id at 2266. Meaningful review in this context requires that a court have “some authority to assess the sufficiency of the Government’s evidence against the detainee” and to “admit and consider relevant exculpatory evidence” that may be added to the record by petitioners during review. Id at 2270.
Habeas review for Guantánamo detainees need not match the procedures developed by Congress and the courts specifically for habeas challenges to criminal convictions. Boumediene’s holding explicitly stated that habeas procedures for detainees “need not resemble a criminal trial,” 128 S. Ct. at 2269. …
… [I]n the shadow of Boumediene, courts are neither bound by the procedural limits created for other detention contexts nor obliged to use them as baselines from which any departures must be justified. Detention of aliens outside the sovereign territory of the United States during wartime is a different and peculiar circumstance, and the appropriate habeas procedures cannot be conceived of as mere extensions of an existing doctrine. 
United States, Court of Appeals for the District of Columbia Circuit, Al-Bihani case, Judgment, 5 January 2010, pp. 14–15 and 17.
In the Al Maqaleh case in May 2010, involving three detainees held as unlawful enemy combatants at the Bagram Airfield Military Base in Afghanistan who had petitioned for writs of habeas corpus, the US Court of Appeals for the District of Columbia Circuit reversed a decision of the lower court and ordered that the detainees’ petitions be dismissed. The Court stated:
[In considering] the question of the jurisdiction of United States courts to consider habeas petitions from detainees in Guantánamo, the [US Supreme] Court [in [Boumediene v. Bush, 128 S. Ct. 2229 (2008)] concluded that “at least three factors are relevant in determining the reach of the Suspension Clause.” Id. at 2259. [The Suspension Clause is Article I, Section 9 of the US Constitution, which provides that “[t]he 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”.] Those three factors, which we must apply today in answering the same question as to detainees at Bagram, are:
(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.
Id. Applying these factors to the detainees at Guantánamo, the Court held that the petitioners had the protection of the Suspension Clause. 
United States, Court of Appeals for the District of Columbia Circuit, Al Maqaleh case, Judgment, 21 May 2010, pp. 93–94.
Regarding the first factor in the “three-factor test”, the court stated:
The first of the enumerated factors is “the citizenship and status of the detainee and the adequacy of the process through which that status determination was made.” Citizenship is, of course, an important factor in determining the constitutional rights of persons before the court. It is well established that there are “constitutional decisions of [the Supreme] Court expressly according differing protection to aliens than to citizens.” United States v. Verdugo-Urquidez, 494 U.S. at 273, 110 S.Ct. 1056 [1990]. However, clearly the alien citizenship of the petitioners in this case does not weigh against their claim to protection of the right of habeas corpus under the Suspension Clause. So far as citizenship is concerned, they differ in no material respect from the petitioners at Guantánamo who prevailed in Boumediene. As to status, the petitioners before us are held as enemy aliens. But so were the Boumediene petitioners. While the Eisentrager [Johnson v. Eisentrager, 339 U.S. 763 (1950), where the Supreme Court held that US courts had no jurisdiction over German war criminals held in a US-administered prison in Germany], petitioners were in a weaker position by having the status of war criminals, that is immaterial to the question before us. This question is governed by Boumediene and the status of the petitioners before us again is the same as the Guantánamo detainees, so this factor supports their argument for the extension of the availability of the writ.
So far as the adequacy of the process through which that status determination was made, the petitioners are in a stronger position for the availability of the writ than were either the Eisentrager or Boumediene petitioners. As the Supreme Court noted, the Boumediene petitioners were in a very different posture than those in Eisentrager in that “there ha[d] been no trial by military commission for violations of the laws of war.” 128 S.Ct. at 2259. Unlike the Boumediene petitioners or those before us, “[t]he Eisentrager petitioners were charged by a bill of particulars that made detailed factual allegations against them.” Id. at 2260. The Eisentrager detainees were “entitled to representation by counsel, allowed to introduce evidence on their own behalf, and permitted to cross-examine the prosecution’s witnesses” in an adversarial proceeding. Id. The status of the Boumediene petitioners was determined by Combatant Status Review Tribunals (CSRTs) affording far less protection. Under the CSRT proceeding, the detainee, rather than being represented by an attorney, was advised by a “Personal Representative” who was “not the detainee’s lawyer or even his ‘advocate.”’ Id. The CSRT proceeding was less protective than the military tribunal procedures in Eisentrager in other particulars as well, and the Supreme Court clearly stated that “[t]he difference is not trivial.” Id. at 2259.
The status of the Bagram detainees is determined not by a Combatant Status Review Tribunal but by an “Unlawful Enemy Combatant Review Board” (UECRB). As the district court correctly noted, proceedings before the UECRB afford even less protection to the rights of detainees in the determination of status than was the case with the CSRT. Therefore, as the district court noted, “while the important adequacy of process factor strongly supported the extension of the Suspension Clause and habeas rights in Boumediene, it even more strongly favors petitioners here.” Al Maqaleh, 604 F.Supp.2d at 227. Therefore, examining only the first of the Supreme Court’s three enumerated factors, petitioners have made a strong argument that the right to habeas relief and the Suspension Clause apply in Bagram as in Guantánamo. However, we do not stop with the first factor. 
United States, Court of Appeals for the District of Columbia Circuit, Al Maqaleh case, Judgment, 21 May 2010, pp. 95–96.
[footnote in original omitted]
Regarding the second factor in the “three-factor test”, the court stated:
The second factor, “the nature of the sites where apprehension and then detention took place,” weighs heavily in favor of the United States. Like all petitioners in both Eisentrager and Boumediene, the petitioners here were apprehended abroad. While this in itself would appear to weigh against the extension of the writ, it obviously would not be sufficient, otherwise Boumediene would not have been decided as it was. However, the nature of the place where the detention takes place weighs more strongly in favor of the position argued by the United States and against the extension of habeas jurisdiction than was the case in either Boumediene or Eisentrager. In the first place, while de facto sovereignty is not determinative, for the reasons discussed above, the very fact that it was the subject of much discussion in Boumediene makes it obvious that it is not without relevance. As the Supreme Court set forth, Guantánamo Bay is “a territory that, while technically not part of the United States, is under the complete and total control of our Government.” 128 S.Ct. at 2262. While it is true that the United States holds a leasehold interest in Bagram, and held a leasehold interest in Guantánamo, the surrounding circumstances are hardly the same. The United States has maintained its total control of Guantánamo Bay for over a century, even in the face of a hostile government maintaining de jure sovereignty over the property. In Bagram, while the United States has options as to duration of the lease agreement, there is no indication of any intent to occupy the base with permanence, nor is there hostility on the part of the “host” country. Therefore, the notion that de facto sovereignty extends to Bagram is no more real than would have been the same claim with respect to Landsberg [prison in Germany] in the Eisentrager case. While it is certainly realistic to assert that the United States has de facto sovereignty over Guantánamo, the same simply is not true with respect to Bagram. Though the site of detention analysis weighs in favor of the United States and against the petitioners, it is not determinative. 
United States, Court of Appeals for the District of Columbia Circuit, Al Maqaleh case, Judgment, 21 May 2010, pp. 96–97.
Regarding the third factor in the “three-factor test”, the court stated:
But we hold that the third factor, that is “the practical obstacles inherent in resolving the prisoner’s entitlement to the writ,” particularly when considered along with the second factor, weighs overwhelmingly in favor of the position of the United States. It is undisputed that Bagram, indeed the entire nation of Afghanistan, remains a theater of war. Not only does this suggest that the detention at Bagram is more like the detention at Landsberg than Guantánamo, the position of the United States is even stronger in this case than it was in Eisentrager. As the Supreme Court recognized in Boumediene, even though the active hostilities in the European theater had “c[o]me to an end,” at the time of the Eisentrager decision, many of the problems of a theater of war remained:
In addition to supervising massive reconstruction and aid efforts the American forces stationed in Germany faced potential security threats from a defeated enemy. In retrospect the post-War occupation may seem uneventful. But at the time Eisentrager was decided, the Court was right to be concerned about judicial interference with the military’s efforts to contain “enemy elements, guerilla fighters, and ‘were-wolves.’”
128 S.Ct. at 2261 (quoting Eisentrager, 339 U.S. at 784, 70 S.Ct. 936).
In ruling for the extension of the writ to Guantánamo, the Supreme Court expressly noted that “[s]imilar threats are not apparent here.” 128 S.Ct. at 2261. In the case before us, similar, if not greater, threats are indeed apparent. The United States asserts, and petitioners cannot credibly dispute, that all of the attributes of a facility exposed to the vagaries of war are present in Bagram. The Supreme Court expressly stated in Boumediene that at Guantánamo, “[w]hile obligated to abide by the terms of the lease, the United States is, for all practical purposes, answerable to no other sovereign for its acts on the base. Were that not the case, or if the detention facility were located in an active theater of war, arguments that issuing the writ would be ‘impractical or anomalous’ would have more weight.” Id. at 2261–62 (emphasis added). Indeed, the Supreme Court supported this proposition with reference to the separate opinion of Justice Harlan in Reid [Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957)], where the Justice expressed his doubts that “every provision of the Constitution must always be deemed automatically applicable to United States citizens in every part of the world.” See 354 U.S. at 74, 77 S.Ct. 1222 (Harlan, J., concurring in the result). 
United States, Court of Appeals for the District of Columbia Circuit, Al Maqaleh case, Judgment, 21 May 2010, pp. 97–98.
[emphasis in original]
The Court concluded:
We therefore conclude that under both Eisentrager and Boumediene, the writ does not extend to the Bagram confinement in an active theater of war in a territory under neither the de facto nor de jure sovereignty of the United States and within the territory of another de jure sovereign.
Bagram remains in a theater of war. We cannot, consistent with Eisentrager as elucidated by Boumediene, hold that the right to the writ of habeas corpus and the constitutional protections of the Suspension Clause extend to Bagram detention facility in Afghanistan, and we therefore must reverse the decision of the district court denying the motion of the United States to dismiss the petitions. 
United States, Court of Appeals for the District of Columbia Circuit, Al Maqaleh case, Judgment, 21 May 2010, p. 98.
In the Awad case in June 2010, in which a detainee at Guantánamo Bay, Cuba, appealed a district court’s denial of his petition for a writ of habeas corpus, the US Court of Appeals for the District of Columbia Circuit affirmed the decision of the lower court that the petition be denied. The Court stated:
Prior decisions of this court clearly hold that a preponderance of the evidence standard is constitutional and that there is no requirement that the government must show that a detainee would be a threat if released in order to detain him. … Accordingly, we affirm the district court’s denial of his petition for a writ of habeas corpus. 
United States, Court of Appeals for the District of Columbia Circuit, Awad case, Judgment, 2 June 2010, p. 12.
In the Barhoumi case in June 2010, in which a detainee held at the Guantánamo Bay naval base in Cuba appealed a district court’s denial of his petition for a writ of habeas corpus, the US Court of Appeals for the District of Columbia Circuit affirmed the decision of the lower court that the petition be denied. The Court stated:
[The appellant], a detainee held at the U.S. naval base in Guantánamo Bay, Cuba, appeals the district court’s denial of his petition for a writ of habeas corpus. The district court found that [the appellant] was “part of” an al-Qaida-associated force engaged in hostilities against the United States or its coalition partners and was therefore lawfully detained under the Authorization for Use of Military Force [AUMF: Pub.L. No. 107–40, § 2(a), 115 Stat. 224, 224 (2001)] [The appellant] contends that the court erred as a matter of law in admitting hearsay diary evidence and in applying a preponderance of the evidence standard of proof. …
[I]n Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) … the Supreme Court held that the constitutional privilege of habeas corpus extends to aliens detained at Guantánamo …
Following Boumediene, the judges of the district court, meeting in executive session, decided to coordinate proceedings in most Guantánamo habeas cases, including [the appellant]’s. In re Guantánamo Bay Detainee Litig., Misc. No. 08–442 (D.D.C. July 2, 2008). On November 6, 2008, Judge Hogan, the coordinating judge, issued a Case Management Order governing the consolidated proceedings. In re Guantánamo Bay Detainee Litig., Misc. No. 08–442, 2008 WL 4858241 (D.D.C. Nov.6, 2008) (“CMO”). The CMO provided, among other things, that (1) individual judges hearing habeas corpus petitions may admit and consider hearsay evidence, and (2) the government bears the burden of proving by a preponderance of the evidence that the petitioner’s detention is lawful. Id., 2008 WL 4858241 at *3.
We begin with two threshold legal issues. [The appellant] argues that the district court erred in admitting into evidence the al-Suri and [redacted] diaries, which are hearsay. See Fed.R.Evid. 801(c). He further argues that the district court should have applied a clear and convincing evidence standard of proof rather than a preponderance standard. We consider each issue in turn.
[The appellant] contends that in admitting the diaries, the district court adjudicating his habeas petition failed to comply with the CMO, which set forth the following procedures regarding the admission of hearsay evidence:
On motion of either the petitioner or the government, the Merits Judge may admit and consider hearsay evidence that is material and relevant to the legality of the petitioner’s detention if the movant establishes that the hearsay evidence is reliable and that the provision of non-hearsay evidence would unduly burden the movant or interfere with the government’s efforts to protect national security. The proponent of hearsay evidence shall move for admission of the evidence no later than 7 days prior to the date on which the initial briefs for judgment on the record are due.
CMO, 2008 WL 4858241 at *3 (internal citation omitted).
Although the cases [the appellant] cites hold that parties have a duty to comply with case management orders, he cites no authority for the proposition that judges are required to follow their own – much less another judge’s – case management order. In any event, the CMO governing the Guantánamo habeas cases expressly authorizes judges assigned to adjudicate habeas petitions to “alter the framework [set out in the CMO] based on the particular facts and circumstances of their individual cases.” CMO, 2008 WL 4858241 at *1 n. 1. That is precisely what the district court did here. Citing the “unique and difficult” circumstances inherent in the Guantánamo proceedings, the district court decided – after giving Barhoumi an opportunity to respond to the government’s motion to supplement the record – that the circumstances of [the appellant]’s case justified admitting all hearsay evidence. Hr’g Tr. at 4. Other district judges have made the same determination in similar circumstances. See, e.g., Awad v. Obama, 646 F.Supp.2d 20, 23 (D.D.C.2009) (receiving all evidence offered by either side but assessing it “item-by-item for consistency, the conditions in which statements were made and documents found, the personal knowledge of a declarant, and the levels of hearsay”). We therefore conclude that the district court did not abuse its discretion in departing from the CMO’s procedural framework regarding the admissibility of hearsay. …
[The appellant] next contends that irrespective of the district court’s fidelity to the CMO, the court erred in admitting the diaries absent a demonstration by the government that they fall within an established hearsay exception in the Federal Rules of Evidence. This argument, however, runs counter to this court’s decision in Al-Bihani v. Obama, 590 F.3d 866 (D.C.Cir.2010), another Guantánamo habeas case in which the detainee also challenged the district court’s admission of hearsay evidence. Relying in part on the Supreme Court’s suggestion in Hamdi v. Rumsfeld, 542 U.S. 507, 533–34, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004), that hearsay “may need to be accepted as the most reliable available evidence” in enemy combatant proceedings, the court stated that “the question a habeas court must ask when presented with hearsay is not whether it is admissible – it is always admissible – but what probative weight to ascribe to whatever indicia of reliability it exhibits,” Al-Bihani, 590 F.3d at 879 (emphasis added).
… Thus, to show that the district court erred in considering the diary evidence, [the appellant] must “establish not that it is hearsay, but that it is unreliable hearsay” – a question that we address … below. Awad, at 7.
… In Al-Bihani, the detainee similarly argued for “at least” a clear and convincing evidence standard, while the government argued for a preponderance standard. Al-Bihani, 590 F.3d at 878. We concluded that “the government’s argument stands on more solid ground,” stating: “Our narrow charge is to determine whether a preponderance standard is unconstitutional. Absent more specific and relevant guidance, we find no indication that it is.” Id.
[The appellant] attempts to recast this language as mere dicta, but again, that argument is barred by Awad. There the panel interpreted Al-Bihani as holding that “a preponderance of the evidence standard is constitutional in evaluating a habeas petition from a detainee held at Guantánamo Bay, Cuba.” Awad, at 10. That resolves the question here as well.
This brings us to [the appellant]’s factual challenge. He argues that even if the diaries are admissible hearsay, the district court should have disregarded them on the ground that they are inherently unreliable.
Although under Al-Bihani and Awad hearsay evidence is always admissible in Guantánamo habeas proceedings, such evidence must be accorded weight only in proportion to its reliability. See Al-Bihani, 590 F.3d at 879 (“[T]he question a habeas court must ask when presented with hearsay is not whether it is admissible – it is always admissible – but what probative weight to ascribe to whatever indicia of reliability it exhibits”).
… Indeed, in Parhat [Parhat v. Gates, 532 F.3d 834 (D.C.Cir.2008)], we clarified that “we do not suggest that hearsay evidence is never reliable – only that it must be presented in a form, or with sufficient additional information, that permits … [the] court to assess its reliability.” 532 F.3d at 849.
… [T]he al-Suri diary is unquestionably hearsay, but nonetheless admissible as a matter of law pursuant to Al-Bihani and Awad. The question in this case, then, is not a binary one – admissibility vs. inadmissibility – but rather concerns the degree of reliability exhibited by the diary. Although we accept that the additional layer of hearsay added by the diary’s translation renders it somewhat less reliable than it otherwise would be (particularly if the government had provided information regarding its translation), we nonetheless reject [the appellant]’s contention that the district court therefore clearly erred in relying on the diary.
For the reasons set forth above, we detect no reversible error in the district court’s finding, … that it is more likely than not that [the appellant] was “part of” an al-Qaida-associated force and therefore properly detained pursuant to the AUMF. We therefore affirm the district court’s denial of [the appellant]’s petition for a writ of habeas corpus. 
United States, Court of Appeals for the District of Columbia Circuit, Barhoumi case, Judgment, 11 June 2010, pp. 418–423, 427–429 and 431–432.
[emphasis in original]
In the Bensayah case in June 2010, in which a detainee held at the Guantánamo Bay naval base in Cuba appealed a district court’s denial of his petition for a writ of habeas corpus, the US Court of Appeals for the District of Columbia Circuit remanded the case to the lower court for it to determine if the appellant was “functionally” part of al-Qaeda and therefore lawfully detained under the Authorization for Use of Military Force (AUMF). The Court stated:
In Boumediene the Supreme Court held detainees at Guantánamo Bay are entitled to “the fundamental procedural protections of habeas corpus,” 128 S.Ct. at 2277, but did not expand upon which procedural protections are “fundamental.” It left open, for instance, the standard of proof the Government must meet in order to defeat a petition for habeas corpus. Id. at 2271 (“The extent of the showing required of the Government in these cases is a matter to be determined”). [The appellant] argues that because he is liable to be held “for the duration of hostilities that may last a generation or more,” requiring the Government to prove the lawfulness of his detention by a mere preponderance of the evidence is inappropriate. He contends the district court should have required the Government to prove its case beyond a reasonable doubt, or at least by clear and convincing evidence. This argument has been overtaken by events, for we have recently held a standard of proof higher than a preponderance of the evidence is not a “fundamental procedural protection” of habeas required by Boumediene. Awad, at 11 (“A preponderance of the evidence standard satisfies constitutional requirements in considering a habeas petition from a detainee held pursuant to the AUMF”); Al-Bihani v. Obama, 590 F.3d 866, 878 (2010) (“Our narrow charge is to determine whether a preponderance standard is unconstitutional. Absent more specific and relevant guidance, we find no indication that it is.”). 
United States, Court of Appeals for the District of Columbia Circuit, Bensayah case, Judgment, 28 June 2010, pp. 431–432.
[footnote in original omitted]
In December 2005, the US President issued a President’s Statement on his Signing of H.R. 2863, the “Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006”, which, in part, made reference to the Detainee Treatment Act of 2005:
The executive branch shall construe Title X [The Detainee Treatment Act of 2005] in Division A of the Act , relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action. Finally, given the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005. 
United States, President’s Statement on Signing of H.R. 2863, the “Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006”, 30 December 2005.
In a supplementary statement, “President’s Statement on the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006”, issued on the same day of his signing of H.R. 2863, President Bush made further reference to the Detainee Treatment Act of 2005:
These provisions reaffirm the values we share as a Nation and our commitment to the rule of law. As the sponsors of this legislation have stated, however, they do not create or authorize any right for terrorists to sue anyone, including our men and women on the front lines in the war on terror. These men and women deserve our respect and thanks for doing a difficult job in the interest of our country, not a rash of lawsuits brought by our enemies in our own courts. Far from authorizing such suits, this law provides additional liability protection for those engaged in properly authorized detention or interrogation of terrorists. I am pleased that the law also makes provision for providing legal counsel to and compensating our service members and other U.S. Government personnel for legal expenses in the event a terrorist attempts to sue them, in our courts or in foreign courts. I also appreciate the legislation’s elimination of the hundreds of claims brought by terrorists at Guantánamo Bay, Cuba, that challenge many different aspects of their detention and that are now pending in our courts. 
United States, President’s Statement on Signing of H.R. 2863, “President’s Statement on the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006”, 30 December 2005.