Section E. Decision on the lawfulness of deprivation of liberty
Geneva Convention IV
Article 43, first paragraph, of the 1949 Geneva Convention IV provides:
Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit.
Geneva Convention IV
Article 78 of the 1949 Geneva Convention IV provides that the occupying power may take a decision to apply safety measures (such as assigned residence or to internment) with regard to protected persons. It adds that such a decision shall be made under a regular procedure and that “it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power”.
European Convention on Human Rights
Article 5(4) of the 1950 European Convention on Human Rights stipulates:
Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
International Covenant on Civil and Political Rights
Article 9(4) of the 1966 International Covenant on Civil and Political Rights provides:
Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide on the lawfulness of his detention and order his release if the detention is not lawful.
American Convention on Human Rights
Article 7(6) of the 1969 American Convention on Human Rights provides:
Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful.
Convention on the Rights of the Child
Article 37 of the 1989 Convention on the Rights of the Child provides:
Every child deprived of his or her liberty shall have … the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.
Convention on Enforced Disappearance
The 2006 Convention on Enforced Disappearance provides:
Recalling … relevant international instruments in the fields of human rights, humanitarian law and international criminal law,
2. Without prejudice to other international obligations of the State Party with regard to the deprivation of liberty, each State Party shall, in its legislation:
Guarantee that any person deprived of liberty or, in the case of a suspected enforced disappearance, since the person deprived of liberty is not able to exercise this right, any persons with a legitimate interest, such as relatives of the person deprived of liberty, their representatives or their counsel, shall, in all circumstances, be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of the deprivation of liberty and order the person’s release if such deprivation of liberty is not lawful.
American Declaration on the Rights and Duties of Man
Article XXV of the 1948 American Declaration on the Rights and Duties of Man provides: “Every individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court without undue delay or, otherwise, to be released.”
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
Principle 32 of the 1988 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides:
A detained person or his counsel shall be entitled at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of his detention in order to obtain his release without delay, if it is unlawful.
Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines
Article 5 of Part II of the 1998 Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines provides that all persons have the right to effectively avail of the privilege of the writ of habeas corpus
Argentina’s Law of War Manual (1969) provides:
Any protected person who has been interned or placed in assigned residence shall have the right to obtain that a court or an administrative board, created by the [Detaining Power] for this purpose, reconsider within a brief time limit the decision taken against him. If it maintains the internment or assigned residence, the court or administrative board shall proceed periodically, and at least twice a year, to the examination of the case of the concerned person in order to modify in his favour the initial decision, if circumstances permit.
Argentina’s Law of War Manual (1989) provides:
Any protected person who has been subjected to [enforced residence or internment] will have the right that a competent tribunal or administrative council, especially created by the Detaining Power, reconsider, as promptly as possible, the decision adopted.
If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit.
Canada’s LOAC Manual (1999) provides:
A person who has been interned or placed in an assigned residence is entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board of the belligerent. If the internment or placing in assigned residence is maintained, the court or administrative board must periodically, and at least twice yearly, reconsider the case with a view to the favourable amendment of the initial decision if circumstances permit.
Canada’s LOAC Manual (2001), in its chapter on the treatment of civilians in the hands of a party to the conflict or an occupying power and, more specifically, in a section entitled “Aliens in the territory of a party to the conflict”, states:
A person who has been interned or placed in an assigned residence is entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board of the belligerent. If the internment or placing in assigned residence is maintained, the court or administrative board must periodically, and at least twice yearly, reconsider the case with a view to the favourable amendment of the initial decision if circumstances permit.
Colombia’s Basic Military Manual (1995) provides:
The work undertaken by persons who cooperate with those who are deprived of their liberty in order to invoke the right to habeas corpus
, or who invoke this right directly in their name, finds its legal basis in their status as human rights defenders.
Germany’s Military Manual (1992) provides regarding aliens placed in assigned residence or internment: “It shall be possible to have the measures reconsidered by an appropriate court or administrative board.”
New Zealand’s Military Manual (1992) provides:
A person who has been interned or placed in an assigned residence is entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board of the belligerent. If the internment or placing in assigned residence is maintained, the court or administrative board must periodically, and at least twice yearly, reconsider the case with a view, if circumstances permit, to the favourable amendment of the initial decision.
Peru’s IHL and Human Rights Manual (2010) states:
Habeas Corpus … is a legal remedy sought before a … [judge] where the person is arbitrarily detained in order to request the re-establishment of a constitutional and social guarantee that has been violated or when an individual’s liberty has been threatened by an official, authority or person.
Recourse to Habeas Corpus
not only protects the right to life and integrity of the person of individuals who are deprived of their liberty because of a State of Emergency by preventing the detainee’s disappearance or the inability to identify his or her whereabouts, it also protects the detainee from torture and other cruel, inhuman or degrading treatment. Although a State of Emergency may legitimately result in the adoption of exceptional measures that affect personal liberty, this does not exclude the control of the lawfulness of such measures.
The manual also states:
a. Article 137 of the [Peruvian] Constitution sets out the modalities of [the two] States of Exception: State of Emergency and the State of Siege:
(2) State of Siege
(a) May be established in the following cases:
2. External war
3. Civil war
4. Imminent danger resulting from any of the aforementioned situations.
South Africa’s LOAC Teaching Manual (2008) states:
2.4 Specifically Protected Persons and Objects:
Internment of Civilians
Article 43 [of the 1949] Geneva Convention IV states that any person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) provides:
A person who has been interned or placed in an assigned residence is entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board of the belligerent. If the internment or placing in assigned residence is maintained, the court or administrative board must periodically, and at least twice yearly, reconsider the case with a view to the favourable amendment of the initial decision if circumstances permit.
The manual further specifies that, in occupied territories,
the decisions regarding such assigned residence or internment can only be made in accordance with regular procedure … If the decision to intern, or to assign a special place of residence to, a protected person is upheld on appeal, such decision must be subject to periodical review – if possible every six months – by a competent body set up by the Occupant.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
By United Kingdom law, prisoners of war held in the custody of the United Kingdom are subject to the ordinary criminal and civil law, subject to certain modifications that follow from prisoner of war status. An example of a modification of the law is the rule that a prisoner of war, unless released on parole in the United Kingdom, is debarred from obtaining a writ of habeas corpus
to test the lawfulness of his detention.
United States of America
The US Field Manual (1956) reproduces Article 43 of the 1949 Geneva Convention IV.
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 of America
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.
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’”.
Bangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime.
Colombia’s Law No. 1095 (2006) states:
Habeas Corpus is a fundamental right as well as a constitutional action which protects personal liberty if a person is deprived of his or her liberty in violation of the constitutional or legal guarantees or for a prolonged period of time. This action may only be invoked or initiated once and in deciding this matter the principle pro homine must be applied.
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Military Judiciary Code (2002) provides:
Chapter III: Detention pending trial and provisional liberty and controlled liberty
At any moment, a person in detention pending trial can ask the Military Auditor for his release or provisional release.
At any moment, the accused or his counsel can ask the Military Auditor for provisional release, under the obligations provided in the following paragraph. The Military Auditor assesses whether he can grant provisional release or not.
In any case, the Military Auditor can order provisional release ex officio
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Articles 43 and 78 of the Geneva Convention IV, is a punishable offence.
Israel’s Order Concerning Administrative Detention (2007) states:
4. (a) A person detained according to this Order will be brought within 8 days of his above mentioned arrest before a judge, in accordance with para. 3(b)(1) of the Order concerning Security Provisions (Judea and Samaria) (No 378), 1970 (hereafter: The Security Provisions Order), with a rank no lower than Major. The judge may confirm or annul the Arrest Warrant, or shorten the detention period stated in it;
If the detainee was not brought before a judge, and court proceedings not begun within the above mentioned 8 days, the detainee shall be released, unless according to any law or security legislation there is another reason for his detention.
(b) The judge shall annul the Arrest Warrant if it is proven that it was issued on grounds other than security of the area or public security considerations, or that it was not issued in good faith or that its issue was based on irrelevant considerations.
The decision of the judge, made according to par. 4, may be appealed before a judge of a Military Appeals Court as stated in par. 3(b)(4) of the Security Provisions Order, who shall have all the authorizations granted a judge as per this order.
Israel’s Order regarding Security Provisions (Judea and Samaria) (2009) states with regard to habeas corpus:
(a) A military court may at any time issue a habeas corpus against a defendant, if it sees a need to do so in order to force him to report to trial at the determined time.
(b) A defendant against whom a habeas corpus
has been issued pursuant to subsection (a) shall be brought before the military court as soon as possible, and it shall order whether he should be held in detention or released under conditions it determines.
Japan’s Habeas Corpus Act (1948) states: “Any person whose liberty of person is under restraint without due process of law may apply for relief pursuant to the provisions of this Act.”
Malaysia’s Internal Security Act (1960), as amended in 1989, provides:
Power to order detention or restriction of persons
8. (1) If the Minister is satisfied that the detention of any person is necessary with a view to preventing him from acting in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or to the economic life thereof, he may make an order (hereinafter referred to as “a detention order”) directing that that person be detained for any period not exceeding two years.
(7) The Minister may direct that the duration of any detention order or restriction order be extended for such further period, not exceeding two years, as he may specify, and thereafter for such further periods, not exceeding two years at a time …
Judicial review of act or decision of Yang di-Pertuan Agong and Minister
8B. (1) There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Yang di-Pertuan Agong or the Minister in the exercise of their discretionary power in accordance with this Act, save in regard to any question on compliance with any procedural requirement in this Act governing such act or decision.
Morocco’s Penal Code (1962) provides:
Public officials, agents of public power, holders of public authority and those responsible for the administrative or judicial police, who have refused or neglected to defer to a reclamation aimed at determining an unlawful or arbitrary detention, either in the institutions or places allocated to the holding of detainees, or anywhere else, and who do not show that they have informed the superior authority of it, are punished with the loss of their civil rights.
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … is liable to imprisonment.
The Philippines’ Republic Act No. 9344 (2006), the Juvenile Justice and Welfare Act of 2006, provides:
Sec. 5. Rights of the Child in Conflict with the Law. – Every child in conflict with the law shall have the following rights, including but not limited to:
(e) … the right to challenge the legality of the deprivation of his/her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on such action.
Countless pieces of domestic legislation contain provisions on the right to have the lawfulness of detention reviewed by a court and the release ordered in case it is not lawful (so-called writ of habeas corpus
). For instance, the Russian Federation’s Constitution (1993) provides: “Arrest, detention and keeping in custody shall be allowed only by an order of a court of law. No person may be detained for more than 48 hours without an order of a court of law including the right to make a representation against the order of arrest.”
Sierra Leone’s Constitution (1991) states:
CHAPTER III – THE RECOGNITION AND PROTECTION OF FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS OF THE INDIVIDUAL
17. Protection from arbitrary arrest or detention.
(1) No person shall be deprived of his personal liberty except as may be authorised by law in any of the following cases …
29. Public Emergency.
(2) The President may issue a Proclamation of a state of public emergency only when –
a. Sierra Leone is at war; [or]
b. Sierra Leone is in imminent danger of invasion or involvement in a state of war; or
c. there is actual breakdown of public order and public safety in the whole of Sierra Leone or any part thereof to such an extent as to require extraordinary measures to restore peace and security; or
d. there is a clear and present danger of an actual breakdown of public order and public safety in the whole of Sierra Leone or any part thereof requiring extraordinary measures to avert the same; or
e. there is an occurrence of imminent danger, or the occurrence of any disaster or natural calamity affecting the community or a section of the community in Sierra Leone; or
f. there is any other public danger which clearly constitutes a threat to the existence of Sierra Leone.
(6) Without derogating from the generality of the powers conferred by subsection (5) and notwithstanding the provisions of this Chapter, the regulations or measures may, so far as appears to the President to be necessary or expedient for any of the purposes mentioned in that subsection –
a. make provision for the detention of persons, the restriction of the movement of persons within defined localities, and the deportation and exclusion of persons other than citizens of Sierra Leone from Sierra Leone or any part thereof;
(17) During a period of detention –
a. if any person who is detained in such a case as is mentioned in paragraph (a) of subsection (6) and who is not released so requests at any time not earlier than thirty days after he last made such a request during that period, his case shall be reviewed by an independent and impartial tribunal established by law, comprising not more than three persons from amongst persons of not less than fifteen year’s standing entitled to practise in Sierra Leone as legal practitioners;
c. on any review by a tribunal in pursuance of paragraph (a) of the case of any detained person, the tribunal may make recommendations concerning the necessity or expediency of continuing his detention to the authority by whom it was ordered, but unless it is otherwise provided by law, that authority shall not be obliged to act in accordance with any such recommendation.
South Africa’s Constitution (1996), as amended to 2003, states:
35. Arrested, detained and accused persons
(2) Everyone who is detained, including every sentenced prisoner, has the right –
(d) to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released;
37. States of emergency.
(1) A state of emergency may be declared only in terms of an Act of Parliament and only when –
(a) the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; …
(5) No Act of Parliament that authorises a declaration of a state of emergency, and no legislation enacted or other action taken in consequence of a declaration may permit or authorise –
(c) any derogation from a section mentioned in column 1 of the Table of Non-Derogable Rights, to the extent indicated opposite that section in column 3 of the Table.
(6) Whenever anyone is detained without trial in consequence of a derogation of rights resulting from a declaration of a state of emergency, the following conditions must be observed:
(e) A court must review the detention as soon as reasonably possible, but no later than 10 days after the date the person was detained, and the court must release the detainee unless it is necessary to continue the detention to restore peace and order.
(f) A detainee who is not released in terms of a review under paragraph (e), or who is not released in terms of a review under this paragraph, may apply to a court for a further review of the detention at any time after 10 days have passed since the previous review, and the court must release the detainee unless it is still necessary to continue the detention to restore peace and order.
(7) If a court releases a detainee, that person may not be detained again on the same grounds unless the state first shows a court good cause for re-detaining that person.
(8) Subsection (6) and (7) do not apply to persons who are not South African citizens and who are detained in consequence of an international armed conflict. Instead, the state must comply with the standards binding on the Republic under international humanitarian law in respect of the detention of such persons.
In the “Table of Non-Derogable Rights”, the Constitution includes section 35, entitled “Arrested, detained and accused persons”, and states that the right is protected “[w]ith respect to … subsections … (2)(d) …”.
South Africa’s Implementation of the Geneva Conventions Act (2012) states: “A protected prisoner of war who is in the custody of the South African National Defence Force must be granted the protection of the  Third [Geneva] Convention or the  Fourth [Geneva] Convention, as the case may be.”
The Act defines a “protected prisoner of war” as a “person protected by the Third Convention or a person who is protected as a prisoner of war under [the 1977 Additional] Protocol I”.
Sri Lanka’s Prevention of Terrorism (Temporary Provisions) Act (1979), as amended to 1988, states:
INVESTIGATION OF OFFENCES
6. (1) Any police officer not below the rank of Superintendent or any other police officer not below the rank of Sub-Inspector authorized in writing by him in that behalf may, without a warrant and with or without assistance and notwithstanding anything in any other law to the contrary[:]
(a) arrest any person;
7. (1) Any person arrested under subsection (1) of section 6 may be kept in custody for a period not exceeding seventy-two hours and shall, unless a detention order under section 9 [of a person with regard to whom the Minister has reason to believe or suspect that he or she is connected with or involved in any unlawful activity] has been made in respect of such person, be produced before a Magistrate before the expiry of such period and the Magistrate shall, on an application made [i]n writing … by a police officer not below the rank of Superintendent, make order that such person be remanded until the conclusion of the trial of such person:
Provided that, where the Attorney-General consents to the release … of such person from custody before the conclusion of the trial, the Magistrate shall release such person from custody.
(2) Where any person connected with or concerned in or reasonably suspected to be connected with or concerned in the commission of any offence under this Act appears or is produced before any court other than in the manner referred to in subsection (1), such court shall order the remand of such person until the conclusion of the trial:
Provided that, if an application is made under the hand of a police officer not below the rank of Superintendent to keep such person in police custody for a period not exceeding seventy-two hours, the Magistrate shall authorize such custody and thereupon the order of remand made by the Magistrate shall remain suspended for the period during which such person is in police custody.
DETENTION AND RESTRICTION ORDERS
10. An order made under section 9 shall be final and shall not be called in question in any court or tribunal by way of writ or otherwise.
11. (1) Where the Minister has reason to believe or suspect that any person is connected with or concerned in the commission of any unlawful activity referred to in subsection (1) of section 9, he may make an order in writing imposing on such person such prohibitions or restrictions as may be specified in such order in respect of[:]
(a) his movement outside such place of residence as may be specified ; or
(b) the places of residence and of employment of such person; or
(c) his travel within or outside Sri Lanka; …
(5) An order made by the Minister under subsection (1) shall be final and shall not be called in question in any court or tribunal by way of writ or otherwise.
Sri Lanka’s Emergency Regulations (2005), as amended to 2008, states:
SUPERVISION, SEARCH, ARREST AND DETENTION
19. (1) Where the Secretary to the Ministry of Defence is of [the] opinion with respect to any person that, with a view to preventing such person –
(a) from acting in any manner prejudicial to the national security or to the maintenance of public order, or to the maintenance of essential services; or
(b) from acting in any manner contrary to any of the provisions of sub-paragraph (a) or sub-paragraph (b) of paragraph (2) of regulation 40 or regulation 25 of these regulations,
it is necessary so to do, the Secretary may order that such person be taken into custody and detained in custody:
Provided however that no person shall be detained upon an order under this paragraph for a period exceeding one year.
Provided further that the Magistrate shall not release any person on bail unless the prior written approval of the Attorney-General has been obtained:
Provided further, that where any person detained under the provisions of paragraph (1) is produced before the Magistrate by the person in whose custody he is detained, the court shall order that such person continue to be detained in terms of the detention order made in terms of paragraph (1) in such place as is specified in the said detention order.
(1C) Any person detained in pursuance of the provisions of paragraph (1) for a period of one year reckoned from the date of his arrest, may upon the expiration of such period, be detained by the Secretary for a further period of six months, if it appears that the release of such person would be detrimental to the interests of national security:
Provided that any person detained for a further period of six months shall be produced before a Magistrate every sixty days:
Provided further [that] it shall be the duty of the person in whose custody such person is detained, to cause the production of such person in the manner aforesaid
(3) Any person detained in pursuance of an order made under paragraph (1) of this regulation shall be deemed to be in lawful custody …
(4) For the purpose of this regulation, there shall be one or more Advisory Committees consisting of persons appointed by the President, and any person aggrieved by an order made against him under this regulation may make his objections to such a Committee.
(5) It shall be the duty of the Secretary to the Ministry of Defence to secure that any person against whom an order is made [under] this regulation shall be afforded the earliest practicable opportunity of making to the President representations in writing with respect thereto and that he shall be informed of his right[,] whether or not such representations are made[,] to make his objections to such an Advisory Committee as aforesaid. Rules may be made by the President in relation to the hearing and disposal of such objections.
(6) Any meeting of an Advisory Committee held to consider such objections as foresaid shall be presided over by a chairman nominated by the President and it shall be the duty of the chairman to inform the objector of the grounds on which the order under this regulation has been made against him and to furnish him with such particulars as are in the opinion of the chairman sufficient to enable him to present his case.
(7) Where an Advisory Committee consists of three persons, the quorum for any meeting thereof shall be two, and where an Advisory-Committee consists of more than three persons, the quorum shall be three.
(8) The report of an Advisory Committee with respect to any such objections as foresaid shall be submitted to the Secretary to the Ministry of Defence who may, after consideration thereof, revoke the order to which the objections relate.
(9) Where the Secretary to the Ministry of the Minister in charge of the subject of Defence certifies in writing that any person[,] in respect of whom an order under paragraph (1) of this regulation is made by him[,] [appears] to be or have been a member of an organization, prescribed under regulation 71 of these regulations, the provisions of paragraphs (4), (5), (6), (7) and (8) of this regulation shall not apply in regard to that person. (10) An order under paragraph (1) of this regulation shall not be called in question in any court on any ground whatsoever.
21. The secretary may, where he is of [the] opinion that it is in the interest of national security, issue in respect of any person detained in terms of paragraph (1) of regulation 19 and who has subsequently been placed in fiscal custody, a further detention order authorizing the custody of such person in accordance with the provisions of regulation 19, in a place to be specified in such detention order. In such a case, the court that had previously placed such person in fiscal custody shall order that such person be detained in terms of the detention order in the place specified in such order.
Uganda’s Defence Forces Act (2005) provides that any “person subject to military law, who … unnecessarily detains any other person without bringing him or her to trial, or fails to bring that other person’s case before the proper authority for investigation” commits an offence.
Uganda’s ICC Act (2010) states:
30. Rights of arrested person.
(1) A person arrested under section 26 [Request for arrest and surrender] or 29 [Provisional arrest] shall be brought before a Registrar [of the High Court] within 48 hours.
(2) The Registrar before whom the person is brought may, of his or her own volition or at the request of the person determine –
(a) whether the person was lawfully arrested in accordance with the warrant; and
(b) whether the person’s rights have been respected.
(3) In making a determination under subsection (2) the Registrar shall apply the principles applicable to judicial review.
(4) If the registrar determines that –
(a) the person was not lawfully arrested; or
(b) the person’s rights were not respected,
the Registrar shall make a declaration to that effect with any explanation required but may not grant any other form of relief.
(5) The Registrar shall transmit any declaration made under subsection (4) to the Minister, and the Minister shall transmit it to the ICC.
United States of America
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 of America
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.
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 of America
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.
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states:
Within the twenty four hours following the request of the prosecutor [for the preventive deprivation of liberty of the indicted person], the supervisory judge will decide on the request. …
Within the forty eight hours following apprehension, the indicted [person] will be brought before a judge who … will decide on whether to maintain the [detention] measure or substitute it with a less severe one.
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states:
Within the 24 hours following the request of the prosecutor [for the preventive deprivation of liberty of the indicted person], the supervisory judge will decide on the request …
Within the 48 hours following apprehension, the indicted [person] will be brought before a judge who … will decide on whether to maintain the [detention] measure or substitute it with a less severe one.
Viet Nam’s Criminal Procedure Code (2015), which is applicable to the prosecution of war crimes, states:
Article 110. Emergency custody
1. Emergency custody of a person is permitted in one of the following [situations]:
a) There [is] substantial evidence that such person is going to commit a horrific or extremely severe felony;
b) The accomplice committing the crime, or the perpetrator of the crime, who was identified by the crime victim or a person at the crime scene, must be [prevented] from escap[ing];
c) A person carrying criminal traces or a suspect whose residence, workplace or tools contain criminal traces must be [prevented] promptly from escaping or disposing [of] evidence.
2. The following individuals are entitled to issue an order of emergency custody:
a) Head and vice heads of investigation authorities;
b) Heads of independent units at regiment level and equivalent ones, commanding officers of border protection posts; commanders of border protection units at border gates, captains of border protection units in provinces and centrally-affiliated cities, heads of border reconnaissance departments and drug and crime departments of the border protection force, heads of special services against drug and crime of the border protection force; zone commanders of maritime police force, heads of specialized and legal departments of the maritime police force[;] heads of special service of drug enforcement of the maritime police force; heads of zonal bureaus of fisheries resources surveillances;
4. Upon holding persons in emergency custody or taking in emergency detainees, investigation authorities and units assigned to investigate, within 12 hours, must take statements promptly, and individuals as stated in Point a and Point b, Section 2 of this Article must issue a temporary detainment order, arrest warrant and discharge order on the detainee. The emergency custody order and relevant documents must be delivered promptly to the equivalent Procuracy or competent ones for ratification.
Upon taking in detainees, investigation authorities must take statements promptly within 12 hours, and individuals as per Point a, Section 2 of this Article must issue a temporary detainment order, arrest warrant or release order on the emergency detainee. The emergency custody order and relevant documents must be delivered to the equivalent Procuracy for approval.
6. The [P]rocuracy must strictly administer the grounds for detainment as per Section 1 of this Article. The procurator, if necessary, shall meet the emergency detainee before approving or denying the order for emergency custody. The written record of the emergency detainee’s deposition, as made by the procurator, must be retained in the case file.
Upon receiving the written request for approval of [the] emergency custody order, the Procuracy must decide to approve or deny such order in 12 hours. If [t]he [P]rocuracy denies the emergency custody order, the individual making such order and investigation authority taking in the detainee must immediately discharge the detainee.
Article 114. Essential actions upon emergency custody, arrest or intake of arrestees and detainees
1. Upon holding a person in emergency custody, arresting persons or taking in arrestees and detainees, investigation authorities and units assigned to investigate must take statements promptly and, within 12 hours, make decisions on temporary detainment or discharge of the arrestee.
Article 117. Temporary detainment
4. The individual issuing the decision on temporary detainment, [with]in 12 hours [of] making such decision, must send the decision and supporting documents to the equivalent Procuracy or a competent Procuracy. If the temporary detainment is found [to be] unjustified or unnecessary, the Procuracy issues a decision on annulling the decision on temporary detainment. The individual issuing the decision on temporary detainment must immediately discharge the person on temporary detainment.
Zimbabwe’s Constitution (1979), as amended to 2009, states:
2 Preventive detention
(1) Where a person is detained under any law providing for preventive detention–
(b) his case shall be submitted … for review by a tribunal established under subparagraph (4) and shall be reviewed by such tribunal forthwith; and thereafter his case shall be reviewed by such tribunal at intervals of thirty days (or during a period of public emergency one hundred and eighty days) from the date on which his case was last reviewed;
(d) if the tribunal orders, either because he satisfies the tribunal that new circumstances have arisen or because the tribunal considers it to be desirable, that his case should be submitted to the tribunal for review before the expiration of thirty days (or during a period of public emergency one hundred and eighty days) from the previous review, the case shall be submitted for review when so ordered by the tribunal.
(2) On any such review, the tribunal may make recommendations concerning the necessity or expedience of continuing the detention to the authority by which it was ordered and that authority shall be obliged to act in accordance with any such recommendation unless, during a period of public emergency, the President otherwise directs; and where the President so directs, the authority shall cause to be published in the Gazette a notice that he has so directed.
(3) A person who has been detained under any law providing for preventive detention and who has been released from detention in consequence of a report of a tribunal established under subparagraph (4) that there is, in its opinion, insufficient cause for his detention shall not again be detained by virtue of such law within the period of one hundred and eighty days from his release on the same grounds as those on which he was originally detained.
(7) For the purposes of subparagraph (3), a person shall be deemed to have been detained on the same grounds as those on which he was originally detained unless a tribunal established under subparagraph (4) has reported that, in its opinion, there appear prima facie
to be new and reasonable grounds for the detention, but the giving of any such report shall be without prejudice to the provisions of subparagraphs (1) and (5).
The Constitution also states:
In this Constitution, unless the context otherwise requires–
“period of public emergency” means–
(a) any period when Zimbabwe is engaged in any war and the period immediately following thereon until such date as may be declared by the President, by proclamation in the Gazette
, as the end of the period of public emergency caused by that war.
Zimbabwe’s Constitution (2013) states:
Chapter 4 – Declaration of Rights
50. Rights of arrested and detained persons
(1) Any person who is arrested –
(e) must be permitted to challenge the lawfulness of the arrest in person before a court and must be released promptly if the arrest is unlawful.
(2) Any person who is arrested or detained -
(a) for the purpose of bringing him or her before a court; or
(b) for an alleged offence;
and who is not released must be brought before a court as soon as possible and in any event not later than forty-eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on a Saturday, Sunday or public holiday.
(3) Any person who is not brought to court within the forty-eight hour period referred to in subsection (2) must be released immediately unless their detention has earlier been extended by a competent court.
(5) Any person who is detained, including a sentenced prisoner, has the right –
e) to challenge the lawfulness of their detention in person before a court and, if the detention is unlawful, to be released promptly.
(7) If there are reasonable grounds to believe that a person is being detained illegally or if it is not possible to ascertain the whereabouts of a detained person, any person may approach the High Court for an order –
(a) of habeas corpus, that is to say an order requiring the detained person to be released, or to be brought before the court for the lawfulness of the detention to be justified, or requiring the whereabouts of the detained person to be disclosed;
(b) declaring the detention to be illegal and ordering the detained person’s prompt release
and the High Court may make whatever order is appropriate in the circumstances.
(8) An arrest or detention which contravenes this section, or in which the conditions set out in this section are not met, is illegal.
86. Limitation of rights and freedoms
(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including –
(b) the purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;
(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them –
(f) the right to obtain an order of habeas corpus as provided in section 50(7)(a).
87. Limitations during public emergency
(1) In addition to the limitations permitted by section 86, the fundamental rights and freedoms set out in this Chapter may be further limited by a written law providing for measures to deal with situations arising during a period of public emergency, but only to the extent permitted by this section and the Second Schedule.
(4) No law that provides for a declaration of a state of emergency, and no legislative or other measure taken in consequence of such a declaration may –
(a) indemnify, or permit or authorise an indemnity for, the State or any institution or agency of the government at any level, or any other person, in respect of any unlawful act; or
(b) limit any of the rights referred to in section 86(3), or authorise or permit any of those rights to be violated.
In its attached Second Schedule on Limitations on Rights During Public Emergencies, the Constitution also states:
1. In this Schedule –
“detainee” means a person who is detained under an emergency law that provides for preventive detention;
“emergency law” means a written law that provides for action to be taken to deal with any situation arising during a period of public emergency;
Extent to which fundamental human rights or freedoms may be limited
2. (1) An emergency law may limit any of the fundamental human rights or freedoms, but only to the extent set out in section 87.
Detainees Review Tribunal
3. (1) An emergency law that permits preventive detention must provide for the establishment of a tribunal to review the cases of detainees.
(2) The review tribunal must be appointed by the President on the advice of the Judicial Service Commission and after consultation with the Committee on Standing Rules and Orders.
(3) The review tribunal must consist of –
(a) a chairperson, who is or has been a judge; and
(b) two other members, one of whom –
(i) is or has been a judge or is qualified to be appointed as such:
(ii) has been a magistrate in Zimbabwe for at least seven years: or
(iii) has been qualified for at least seven years to practise as a legal practitioner in Zimbabwe.
Review of detainees’ cases
5. (1) Every detainee’s case must be submitted to the review tribunal within ten days after his or her initial detention and the tribunal must be informed of the name of the detainee, the place where he or she is detained and the reasons for the detention.
(2) Every detainee’s case must be resubmitted to the review tribunal at intervals of thirty days from the date on which the case was last reviewed, or at shorter intervals if the tribunal so orders.
(3) The tribunal must proceed without delay to review all cases submitted to it.
(4) At all hearings by the review tribunal, the detainees whose cases are being reviewed must be allowed to present their cases in person or, if they wish –
(a) through legal practitioners assigned to them by the State at State expense:
(b) at their own expense, through legal practitioners of their choice.
(5) The reference in subparagraph (1) to a ten-day period includes a reference to lesser periods of detention that amount to ten days, in the case of a detainee who is released within ten days after being initially detained and is then re-detained within ten days after the release.
Recommendations of review tribunal
6. After reviewing a detainee's case, the review tribunal must make written recommendations to the authority that ordered the detention as to whether or not the detainee should continue to be detained, and the authority must act in accordance with the tribunal’s recommendation.
Preservation of detainees’ access to courts
8. This Schedule is not to be construed as limiting a detainee’s right to challenge in a court the lawfulness of his or her detention, whether or not his or her case is already before the review tribunal.
The Mahjoub case
concerned an Egyptian national found to be a refugee under the 1951 Refugee Convention in Canada in 1996, and detained in Canada under a security certificate issued by Canadian authorities in 2000. The security certificate was found to be reasonable by Canada’s Federal Court in 2001.
In 2004, Canada’s Federal Court stated in relation to a motion seeking Mr Mahjoub’s release from detention:
Applicable legal principles
 This is, to my knowledge, the first decision rendered pursuant to subsection 84(2) of the Act Immigration and Refugee Protection Act, S.C. 2001, c. 27]. Subsection 84(2) provides that:
84(2) A judge may, on application by a foreign national who has not been removed from Canada within 120 days after the Federal Court determines a certificate to be reasonable, order the foreign national’s release from detention, under terms and conditions that the judge considers appropriate, if satisfied that the foreign national will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person.
 Subsection 84(2) of the Act carries forward the right of a foreign national who is not removed from Canada within 120 days after a security certificate has been found to be reasonable to apply to be released from detention. The test to be applied remains a two-fold test. The judge designated to hear the application is to be satisfied that the foreign national “will not be removed from Canada within a reasonable time” and that the person’s “release will not pose a danger to national security or to the safety of any person” …
(i) Will removal take place within a reasonable time?
 … I accept that the reference to a period of 120 days in subsection 84(2) reflects Parliament’s intent that once a certificate has been determined to be reasonable, the person named in the certificate should be removed expeditiously. However, by requiring as one of the criteria for release that the Court consider whether removal will or will not take place within a reasonable time, Parliament has contemplated that in some circumstances removal will not have occurred within 120 days, but the period of detention may still be a reasonable period. Otherwise, release after 120 days would be automatic, absent considerations of national security or the safety of persons. The right to apply for release after 120 days undoubtedly acts as an impetus to officials to assure an expeditious removal, and at the same time assures that any post 120-day delay can be the subject of judicial scrutiny.
 What in any particular case will be reasonable will depend upon the facts and circumstances of that case.
 The length of time that Mr. Mahjoub has remained in detention since the certificate was determined to be reasonable is a matter of great concern. However, having regard to the steps taken to insure protection of Mr. Mahjoub’s rights, and having regard to the fact that the uncertainty about when he may be removed is in large part the result of pending and contemplated Court challenges initiated on Mr. Mahjoub’s behalf, Mr. Mahjoub has not met the burden of satisfying me, on a balance of probabilities, that he will not be removed from Canada within a reasonable time.
(ii) Will Mr. Mahjoub’s release pose a danger to national security or to the safety of any person?
 In view of my conclusion that Mr. Mahjoub has not satisfied me that he will not be removed from Canada within a reasonable time, it is not strictly necessary for me to consider the second statutory criteria because the requirements of subsection 84(2) of the Act are conjunctive. However, in view of the long period of time that he has remained in detention and the inability of the Ministers’ officials to state with certainty when Mr. Mahjoub will be removed, I think that it is desirable to deal with the second element of the statutory criteria for release.
 The evidence adduced on Mr. Mahjoub’s behalf is not strong. It is insufficient to neutralize the evidence which gives rise to the objectively reasonable belief that Mr. Mahjoub’s release would pose a danger.
 I have also considered whether there are conditions of release capable of addressing that threat …
 However, Mr. Mahjoub has been found by this Court to have been untruthful. Considering that, and the nature of the threat posed, I have not been satisfied by Mr. Mahjoub that the proposed, or similar, conditions would be effective to ensure that his release would not pose a danger to national security or to the safety of any person.
 I have also weighed the evidence of the proposed sureties … I have not been satisfied that the posting of cash sureties would address the danger that I believe would be posed by Mr. Mahjoub’s release.
 It follows, that Mr. Mahjoub has not met the onus upon him of satisfying the Court, on a balance of probabilities, that his release from detention will not pose a danger to national security or to the safety of any person.
 For these reasons, I would dismiss the motion for statutory release.
[emphasis in original]
In 2005, the Federal Court stated in relation to a further motion seeking Mr Mahjoub’s release from detention:
 Turning then to subsection 84(2) of the Act, … , in July of 2003 the Court determined that Mr. Mahjoub had not met the onus upon him to show that he would not be removed from Canada within a reasonable period of time and that his release would not pose a danger to national security, or to the safety of any person. Notwithstanding, in Almrei, … , at paragraph 36 the Court of Appeal endorsed an expansive interpretation of subsection 84(2) which could encompass successive applications for release. In the present case, all counsel agreed in January of 2005 that because of the effluxion of time it was appropriate to reopen the hearing and hear new evidence and submissions with respect to the statutory criteria. I am satisfied this was an appropriate exercise of discretion consistent with Parliament’s objective of appropriate judicial examination of detention.
Has Mr. Mahjoub met the onus of proof upon him to satisfy the court that he will not be removed from Canada within a reasonable period of time?
(i) Relevant principles
 The following relevant principles were articulated by the Court of Appeal in Almrei …:
1. A subsection 84(2) application requires the judge to determine whether the foreign national will be removed from Canada “within a reasonable time”. The concept of “removal within a reasonable time” requires a measurement of the time elapsed from the time the security certificate was found to be reasonable, and an assessment of whether that time is such that it leads to the conclusion that removal will not occur within a reasonable time.
2. The judge must consider the delay and the causes of the delay. Judicial remedies must be pursued diligently and in a timely fashion. This also applies to the Ministers’ responses and to the judicial hearing of the application for release. Subsection 84(2) of the Act “authorizes a judge to discount, in whole or in part, the delay resulting from proceedings resorted to by an applicant that have the precise effect of preventing compliance by the Crown with the law within a reasonable time”. Put another way, where an applicant tries to prevent his removal and delay ensues as a result, he can not complain that his removal has not occurred within a reasonable time, unless the delay is unreasonable or inordinate and not attributable to him.
3. A forward-looking and future-oriented test is used. Evidence must be provided that indicates the applicant will not be removed within a reasonable time. If credible and compelling evidence of an imminent removal is produced, the conditions of detention and the time already served lose much of their significance.
4. The length of the past detention is relevant only to the extent that the history of events may cast doubt on the reliability of the assertion and evidence submitted that the moment of removal is close at hand.
5. The conditions of detention are relevant to a limited extent. That is, the conditions may be such, especially when coupled with a lengthy detention, that the phrase “within a reasonable time” takes on another significance, one of urgency. The removal must then be effected even more expeditiously in order to be in compliance with the requirements of subsection 84(2).
 I will now apply these principles to the evidence before the Court.
 In summary, I have considered the length of Mr. Mahjoub’s detention and the fact that the protracted period of detention arises from both delay on the part of Mr. Mahjoub in pursuing his remedies and from factors beyond his control, such as the length of time taken by the Minister to decide if Mr. Mahjoub should be removed. After four years since the certificate was found to be reasonable, and the quashing of one decision to remove Mr. Mahjoub, a second decision remains outstanding. In my view, it is not necessary to apportion any responsibility for those delays because of the future-orientated nature of the reasonable time test.
 I have been satisfied that Mr. Mahjoub will not be removed from Canada within a reasonable time. I exercise my discretion not to discount the delay on account of the fact that past and future proceedings taken by Mr. Mahjoub have increased the delay. Considerations such as the length and conditions of his detention, as well as the fact that the current state of the law adds to the delay, have led to this decision.
 It follows that Mr. Mahjoub has satisfied me that he will not be removed from Canada within a reasonable period of time.
Has Mr. Mahjoub met the onus upon him to satisfy the court that his release will not pose a danger to national security or to the safety of any person?
(i) Applicable Legal Principles
 In Suresh v. Canada (Minister of Citizenship in Immigration),  1 S.C.R. 3 the Supreme Court of Canada considered what constitutes a “danger to the security of Canada”. The Court concluded, at paragraph 85, that the phrase must be given a “fair, large and liberal interpretation in accordance with international norms”. What constitutes such a danger is “highly fact-based and political in a general sense”.
 The burden of proof rests on Mr. Mahjoub and it is to be met on a balance of probabilities. In Almrei, … , the Federal Court of Appeal clarified, at paragraph 42, that this is an evidentiary burden. Thus, Mr. Mahjoub must adduce some evidence that his release will not pose a danger to national security or to the safety of any person. That evidence must be answered, otherwise Mr. Mahjoub is entitled to release if he also satisfies the Court that he will not be removed within a reasonable time.
 To this must be added one comment about the effect of Mr. Justice Nadon’s prior determination that the security certificate is reasonable. In Suresh, supra, the Court cautioned that “danger to the security of Canada” means something more than a person is named in a security certificate as being inadmissible on grounds of security. The Court of Appeal developed this in Almrei, at paragraph 48, where it stated that a determination of the reasonableness of a security certificate is not determinative of the merit of the detention of the person named in the certificate, and is not a decision that is conclusive of the issue of whether the person is a danger to the security of Canada.
 In weighing these considerations, I am mindful that issues of significant concern to Canadian society are posed whether Mr. Mahjoub continues in detention or is released. This is so because detention of uncertain duration is anathema to the principles which govern our judicial system. Equally, the Act requires the designated judge to be satisfied that national security or the safety of persons will not be put in danger if Mr. Mahjoub is released. After deep reflection I must find that, on the basis of the concerns set out above, Mr. Mahjoub has not persuaded me on a balance of probabilities that his release would not pose a danger to national security or to the safety of any person.
 While I find the prospect of Mr. Mahjoub’s continued detention to be deeply troubling (particularly in the conditions in which he is now held), to release Mr. Mahjoub would require me to substitute a harboured hope that his release would not pose a danger for the standard legislated in the Act. That is not what Parliament intended, nor would it be a responsible decision because, in the context of national security, failure can carry tragic consequences.
(vii) Can Such Danger be Neutralized or Contained by the use of Sureties and the Imposition of Conditions?
 I have found that Mr. Mahjoub has failed to establish that his release would not pose a danger. However, the inquiry does not end there.
 Mr. Mahjoub submits that release on terms and conditions would be appropriate and that those terms and conditions would be sufficient to insure that Mr. Mahjoub’s release would not pose a danger. With the release of Mr. Charkaoui, Mr. Mahjoub points to a judicial trend to release in Canada upon conditions and points to various conditions including house arrest, electronic tagging, curfews, a ban on internet and cell phone use, a requirement to obtain permission to meet anyone outside the home, living at a fixed address, restrictions on visitors, restrictions on bank accounts and monthly written reporting requirements as being appropriate conditions. Mr. Mahjoub also submits that his proposed sureties have sufficient influence over him so as to make it unlikely that any imposed conditions would be breached …
 In July of 2003, I determined that I was not satisfied that the presence of the sureties and the posting of a cash bond would address the danger I believed would be posed by Mr. Mahjoub’s release …
 In the present case, the question becomes whether the presence of the sureties and the imposition of conditions would be sufficient not to impede but to neutralize the danger I have found would be posed by Mr. Mahjoub’s release …
 On the whole, after hearing all of the evidence and observing Mr. Mahjoub give evidence, I am not confident that conditions and the proposed sureties would be sufficient to neutralize the danger that I believe Mr. Mahjoub’s release would pose. This, however, is not to say that this conclusion is determinative of any future application for release from detention. It remains open to Mr. Mahjoub to apply again for release and to provide better sureties and evidence including his own testimony that could be capable of convincing the Court that the danger he poses could be neutralized.
 This court orders that:
For these reasons, the application is dismissed.
[emphasis in original]
On 15 February 2007, in relation to a further motion seeking Mr Mahjoub’s release from detention, the Federal Court stated:
The issues to be determined
 As indicated above, an application for release under ss.84(2) may only be brought by a foreign national who has not been removed from Canada within 120 days after the security certificate was found to be reasonable. In this case, it is obvious that the threshold has been met.
 Counsel for the respondents advised in oral argument that the Ministers did not object to the application being brought. As noted by the Federal Court of Appeal in Almrei, … at para. 52, “…an application under subsection 84(2), like other applications, can be renewed if new facts are discovered or the situation has evolved to a point where detention is no longer necessary or justified” [emphasis mine]. In Harkat v. Canada (Minister of Citizenship and Immigration), 2006 FC 628, 278 F.T.R. 118 at paras. 24, 27 [Harkat, Justice Dawson found that it was appropriate to hear Mr. Harkat’s second ss.84(2) application because of a change in circumstances; an unexplained delay in the appointment of the Minister’s delegate. This was found to constitute “…a distinct departure from the circumstances which the Court could reasonably have anticipated when denying the first application for release.” Justice Dawson’s decision respecting the release of Mr. Harkat on conditions was upheld by the Federal Court of Appeal: Harkat v. Canada (Minister of Citizenship and Immigration), 2006 FCA 259, 270 (D.L.R.) (4th) 35.
 In the present case counsel agreed, and I concur that it is appropriate in the circumstances to reassess Mr. Mahjoub’s case pursuant to subsection 84(2) of the Act. The second decision rendered by the Minister’s delegate pursuant to subsection 115(2)(b) of the Act was under judicial review as of the date of the hearing and has now been quashed and remitted for reconsideration. Mr. Mahjoub has been relocated to a new facility where the conditions of his detention are different from what they were when his previous applications for release were considered. A significant amount of time has also passed since Mr. Mahjoub’s last ss. 84(2) application. Taking into account the totality of the circumstances, the threshold test has been met in the present case.
 The issues remaining to be decided by the Court are whether I am satisfied that:
1. Mr. Mahjoub will not be removed within a reasonable period of time; and
2. His release will not pose a danger to national security or to the safety of any person.
 While not conceding the point, applicant’s counsel indicated that for the purpose of the present proceedings, it would be accepted that the burden to prove these matters to the Court’s satisfaction on a balance of probabilities rested on Mr. Mahjoub.
Summary of conclusions
 In these reasons, I:
1. find that Mr. Mahjoub has met the onus upon him to establish that he will not be removed from Canada within a reasonable time;
2. find that Mr. Mahjoub has met the onus upon him to establish that his release will not pose a danger to national security or to the safety of any person; and
3. outline a series of terms and conditions that I consider appropriate to neutralize or contain any threat or danger posed by his release.
Has Mr. Mahjoub met the onus upon him to establish that he will not be removed from Canada within a reasonable time?
(i) Applicable Principles of Law
 In Harkat, … my colleague Justice Dawson very aptly summarized the legal principles applicable to proceedings under subsection 84(2) of the Act, as set out by the Court of Appeal in Almrei. I repeat this summary here:
1. Time and the behavior of the parties are of the essence of the subsection 84(2) application (referring to paragraph 5 of Almrei).
2. The purpose of subsection 84(2) is to ensure that due diligence will be exercised by the Minister in removing a foreign national detained for security purposes (Almrei paragraph 28).
3. The onus of proof is upon the person seeking release, and the burden must be discharged upon a balance of probabilities (Almrei paragraph 39).
4. A subsection 84(2) application requires the judge to determine whether the foreign national will be removed from Canada “within a reasonable time.” The concept of “removal within a reasonable time” requires a measurement of the time elapsed from the time the security certificate was found to be reasonable, and an assessment of whether that time is such that it leads to the conclusion that removal will not occur within a reasonable time (Almrei paragraph 55).
5. The judge must consider any delay in removal and the causes of the delay. Judicial remedies must be pursued diligently and in a timely fashion. This also applies to the Ministers’ responses and to the judicial hearing of the application for release. Subsection 84(2) of the Act “authorizes a judge to discount, in whole or in part, the delay resulting from proceedings resorted to by an applicant that have the precise effect of preventing compliance by the Crown with the law within a reasonable time.” Put another way, where an applicant tries to prevent his removal and delay ensues as a result, he can not complain that his removal has not occurred within a reasonable time, unless the delay is unreasonable or inordinate and not attributable to him (Almrei paragraphs 57 and 58).
6. A forward-looking and future-oriented test is used. Evidence must be provided that indicates the applicant will not be removed within a reasonable time. If credible and compelling evidence of an imminent removal is produced, the conditions of detention and the time already served lose much of their significance (Almrei paragraph 81).
7. The length of the past detention is relevant only to the extent that the history of events may cast doubt on the reliability of the assertion and evidence submitted that the moment of removal is close at hand (Almrei paragraph 82).
 As further noted by my colleague, these principles are to be understood in the context of a procedure that was intended to provide a constitutionally valid mechanism for the summary removal from Canada of non-citizens viewed to present a danger to Canada’s security. However, in cases such as Mr. Mahjoub’s, it is difficult to maintain the stance that a process which has been underway for so long is summary in nature. It is therefore imperative to recall the requirement of due diligence placed on the Ministers in removing a foreign national who has been detained for security reasons (Almrei, above at para. 28), and the fact that unreasonable delay that unjustifiably and unduly prolongs detention is a violation of constitutionally guaranteed rights (Harkat, above at para. 33).
 My analysis of whether Mr. Mahjoub has met his onus in the present case, on a balance of probabilities, to demonstrate to the Court that his removal will not occur within a reasonable period of time, will therefore take into account the following factors: the length of his detention; delay and causes of delay, the forward looking nature of the test, and the conditions of his detention. The latter will be considered in the context of assessing whether and to what extent the Court should be discounting the pursuit of legal remedies in determining what is meant by “reasonable time” in the present case.
 Having considered and weighed the above noted factors, I conclude that Mr. Mahjoub has satisfied me, on a balance of probabilities, that he will not be removed from Canada within a reasonable time.
Has Mr. Mahjoub met the onus upon him to establish that his release will not pose a danger to national security or to the safety of any person?
(i) Applicable Principles of Law
 The onus is upon Mr. Mahjoub to satisfy the Court, on a balance of probabilities, that his release will not pose a danger to national security or the safety of any person. This onus may be difficult to meet given that an objectively reasonable suspicion of substantial threatened harm may establish the danger: Mahjoub No. 1, … at para. 65; Mahjoub No. 2, … at para. 46; Harkat, … at para. 57. The test is forward looking. As stated in Charkaoui (Re), 2005 FC 248,  3 F.C.R. 389 at paragraph 39 Charkaoui (Re) Parliament has asked the designated judge to analyze the evidence by considering whether the danger still exists.
 It is for Mr. Mahjoub to demonstrate on a balance of probabilities that his release will not pose a danger to national security or to the safety of any person. Even taking into account the changes in circumstances outlined above, it cannot be said on a balance of probabilities that Mr. Mahjoub has demonstrated that he no longer poses a danger to national security or the safety of any person. In reaching this conclusion, I am mindful of the fact that Mr. Mahjoub’s continued detention is of significant concern to Canadian Society. It is with this in mind that I turn to the question of whether the danger that is posed can be neutralized or contained by the use of sureties and the imposition of conditions.
… Can such Danger be Neutralized or Contained by the Use of Sureties and the Imposition of Conditions?
 In addressing the question of whether the danger posed by Mr. Mahjoub’s release can be neutralized or contained by the use of sureties and the imposition of conditions, I will consider the applicable legal principles and the evidence presented.
(a) Applicable legal principles
 The question of whether any conditions are sufficient to neutralize or contain the danger in the present case must be addressed with attention to: the nature of the acts that it is believed Mr. Mahjoub would engage in; the nature of the threat that would result from those acts; and an analysis of why it is believed that conditions would or would not neutralize or contain that threat: Harkat, … at para. 69.
 In addition, when considering what if any conditions might be appropriate, the Court must bear in mind the need for terms and conditions to be specific and tailored to Mr. Mahjoub’s precise circumstances, keeping in mind that to be appropriate they “must be designed to prevent [the applicant’s] involvement in any activity that commits, encourages, facilitates, assists or instigates an act of terrorism, or any similar activity”, and that they “must be proportionate to the risk posed by [the applicant]”: Harkat, … at para. 83.
 Furthermore, as noted by Justice Dawson in Harkat, should the Court determine that the conditions proposed by Mr. Mahjoub are insufficient to neutralize or contain the danger posed by his release, it would be “erroneous to reject Mr. Harkat’s application for release if there are conditions that, on a balance of probabilities, would neutralize or contain the danger posed by his release. In that circumstance, his continued incarceration cannot be justified because of Canada’s respect for human and civil rights, and the values protected by our Charter” (Harkat, … at para. 82). Therefore, should I find that the conditions proposed by Mr. Mahjoub would be insufficient to neutralize the danger, I will consider if any other combination of conditions might be sufficient to do so.
… Conclusion on Terms and Conditions
 Having considered whether there is any combination of terms and conditions that would neutralize or contain the danger posed by Mr. Mahjoub’s release; I have borne in mind the need for them to be specific and tailored to Mr. Mahjoub’s precise circumstances. I have also taken into account the limits of existing monitoring technology. Considering the above noted factors and evidence, I am satisfied that the series of terms and conditions set out in Appendix B to these reasons can be imposed and that they will, on a balance of probabilities, neutralize or contain any threat or danger posed by Mr. Mahjoub’s release.
 For all of these reasons, this application is allowed and Mr. Mahjoub shall be released from detention upon the terms and conditions set out in the attached Appendix B, once the Court is satisfied that the requirements set out therein have been met.
[emphasis in original]
In December 2007, the Federal Court dealt with a motion to vary Mr Mahjoub’s release conditions. Taking into account the Supreme Court of Canada’s decision in Charkaoui v. Canada (Citizenship and Immigration) of 23 February 2007, the Federal Court noted:
 On February 23, 2007 the Supreme Court of Canada released its decision in Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9,  S.C.J. No. 9. The Court determined that the procedure for determining whether a certificate was reasonable and the detention review procedures under the Act infringed section 7 and were not justified under section 1 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. The Supreme Court suspended its declaration of invalidity of the certificate procedure for one year to allow Parliament to enact remedial legislation.
 The Supreme Court found that the detention review provisions were defective as they denied foreign nationals a prompt review of their detention after confirmation of the reasonableness of the security certificate. The remedy imposed, with immediate application, was to strike subsection 84(2) of the Act, to read the words “foreign nationals” into section 83 and to strike the words “until a determination is made under subsection 80(1)” from subsection 83(2). The effect was that persons arrested subject to a security certificate were to be entitled to a review of detention without the 120 day delay required by former subsection 84(2), and to further reviews on a six month basis thereafter.
 At paragraph 116 of Charkaoui
, the Supreme Court noted that stringent release conditions, while less severe than incarceration, seriously limit individual liberty. Accordingly, the Court stated, release conditions must not be a disproportionate response to the nature of the threat.
[emphasis in original]
In conclusion, the Federal Court made amendments to the terms and conditions for Mr Mahjoub’s release from custody.
In 2005, in May v. Ferndale Institution, the Supreme Court of Canada noted:
(1) The Nature of Habeas Corpus
19 The writ of habeas corpus is also known as the “Great Writ of Liberty”. As early as 1215, the Magna Carta entrenched the principle that “[n]o free man shall be seized or imprisoned … except by the lawful judgement of his equals or by the law of the land.” In the 14th century, the writ of habeas corpus was used to compel the production of a prisoner and the cause of his or her detention: W. F. Duker, A Constitutional History of Habeas Corpus (1980), at p. 25.
20 From the 17th to the 20th century, the writ was codified in various habeas corpus acts in order to bring clarity and uniformity to its principles and application. The first codification is found in the Habeas Corpus Act, 1679 (Engl.), 31 Cha. 2, c. 2. Essentially, the Act ensured that prisoners entitled to relief “would not be thwarted by procedural inadequacy”: R. J. Sharpe, The Law of Habeas Corpus (2nd ed. 1989), at p. 19.
21 According to Black J. of the United States Supreme Court, habeas corpus is “not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose – the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty”: Jones v. Cunningham, 371 U.S. 236 (1962), at p. 243. In his book, Sharpe, at p. 23, describes the traditional form of review available on habeas corpus as follows:
The writ is directed to the gaoler or person having custody or control of the applicant. It requires that person to return to the court, on the day specified, the body of the applicant and the cause of his detention. The process focuses upon the cause returned. If the return discloses a lawful cause, the prisoner is remanded; if the cause returned is insufficient or unlawful, the prisoner is released. The matter directly at issue is simply the excuse or reason given by the party who is exercising restraint over the applicant. [Emphasis added.]
22 Habeas corpus is a crucial remedy in the pursuit of two fundamental rights protected by the Canadian Charter of Rights and Freedoms: (1) the right to liberty of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice (s. 7 of the Charter); and (2) the right not to be arbitrarily detained or imprisoned (s. 9 of the Charter). Accordingly, the Charter guarantees the right to habeas corpus:
10. Everyone has the right on arrest or detention
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
23 However, the right to seek relief in the nature of habeas corpus has not always been given to prisoners challenging internal disciplinary decisions. At common law, for a long time, a person convicted of a felony and sentenced to prison was regarded as being devoid of rights. Convicts lost all civil and proprietary rights. The law regarded them as dead. On that basis, courts had traditionally refused to review the internal decision-making process of prison officials: M. Jackson, Justice Behind the Walls: Human Rights in Canadian Prisons (2002), at pp. 47–50. By the end of the 19th century, although the concept of civil death had largely disappeared, the prisoner continued to be viewed in law as a person without rights: M. Jackson, Prisoners of Isolation: Solitary Confinement in Canada (1983), at p. 82.
24 It was this view that provided the original rationale for Canadian courts’ refusal to review the internal decisions of prison officials. The “effect of this hands-off approach was to immunize the prison from public scrutiny through the judicial process and to place prison officials in a position of virtual invulnerability and absolute power over the persons committed to their institutions”: Jackson, Prisoners of Isolation, at p. 82.
25 Shortly after certain serious incidents in federal penitentiaries occurred in the 1970s and reviews of their management took place, this Court abandoned the “hands-off” doctrine and extended judicial review to the decision-making process of prison officials by which prisoners were deprived of their residual liberty. In Martineau v. Matsqui Institution Disciplinary Board,  1 S.C.R. 602, Dickson J. (as he then was) laid the cornerstone for the modern theory and practice of judicial review of correctional decisions:
In the case at bar, the disciplinary board was not under either an express or implied duty to follow a judicial type of procedure, but the board was obliged to find facts affecting a subject and to exercise a form of discretion in pronouncing judgment and penalty. Moreover, the board’s decision had the effect of depriving an individual of his liberty by committing him to a “prison within a prison
”. In these circumstances, elementary justice requires some procedural protection. The rule of law must run within penitentiary walls
. [Emphasis added; p. 622.]
[emphasis in original]
In the Charkaoui case before the Supreme Court of Canada in 2007, in which the three appellants challenged the constitutionality of the provisions of the Canadian Immigration and Refugee Protection Act (IRPA) under which they had been detained for suspected links to terrorist activities, the Supreme Court held:
28. The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process … This principle emerged in the era of feudal monarchy, in the form of the right to be brought before a judge on a motion of
habeas corpus. It remains as fundamental to our modern conception of liberty as it was in the days of King John.
90… Whether through habeas corpus
or statutory mechanisms, foreign nationals, like others, have a right to prompt review to ensure that their detention complies with the law. This principle is affirmed in s. 10(c
) of the Charter
[Canadian Charter of Rights and Freedoms]. It is also recognized internationally.
In 2008, in the Amnesty International Canada case, Canada’s Federal Court dismissed an application for judicial review on the basis of the Canadian Charter of Rights and Freedoms with respect to persons detained by the Canadian Forces (CF) in Afghanistan and their transfer to Afghan authorities. The questions before the Federal Court were as follows:
 To assist in resolving this dispute in a timely and efficient manner, the parties have jointly agreed to have the issue of whether the Charter applies in the context [of] Canada’s military involvement in the armed conflict in Afghanistan determined on the basis of the following questions, pursuant to Rule 107(1) of the Federal Courts Rules:
1. Does the Canadian Charter of Rights and Freedoms apply during the armed conflict in Afghanistan to the detention of non-Canadians by the Canadian Forces or their transfer to Afghan authorities to be dealt with by those authorities?
2. If the answer to the above question is “NO” then would the Charter nonetheless apply if the Applicants were ultimately able to establish that the transfer of the detainees in question would expose them to a substantial risk of torture?
 For the reasons that follow, I have determined that the answer to both of the questions posed by the motion is “No”. As a result, the applicants’ application for judicial review must therefore be dismissed.
b) The Canadian Forces’ Detention of Individuals in Afghanistan
 As part of Canada’s military operations in Afghanistan, Canadian Forces are from time to time required to capture and detain insurgents, or those assisting the insurgents, who may pose a threat to the safety of Afghan nationals, as well as to members of the Canadian military and allied forces.
 Under Theatre Standing Order 321A, the decision as to whether individual detainees should be retained in Canadian custody, released, or transferred to the custody of a third country, is within the sole discretion of the Commander of Joint Task Force Afghanistan, a position currently occupied by General Laroche.
 It is both NATO and Canadian Forces’ policy to transfer or release detainees within 96 hours of their capture. However, the Canadian Forces has the ability to hold detainees for longer periods, and has done so for a variety of reasons.
 While in Canadian custody, detainees are interrogated, searched, photographed and fingerprinted. Detainees are not provided with access to legal counsel during their detention by the Canadian Forces, nor are they afforded any opportunity to make representations prior to being handed over to the Afghan authorities.
 The Canadian Forces have the sole discretion to determine whether a detainee “shall be retained in custody, transferred to [the Afghan National Security Forces] or released.” These determinations are made on a case-by-case basis by the Canadian Commander of Task Force Afghanistan at regular review meetings.
[emphasis in original]
The Federal Court of Appeal subsequently upheld the findings of the Federal Court. It stated:
I conclude that the motions judge made no errors in answering the way she did the two questions that were before her. The Charter has no application to the situations therein described. There is no legal vacuum, considering that the applicable law is international humanitarian law.
In 2008, in the Khadr case, the Supreme Court of Canada was called upon to decide whether records of interviews by Canadian officials of a Canadian national detained at Guantanamo Bay, Cuba, and of information given by Canadian authorities to US authorities as a direct consequence of the interviews must be disclosed to the detainee under the Canadian Charter of Rights and Freedoms. The Court stated:
1. Factual Background
 Omar Khadr is a Canadian citizen who has been detained by U.S. forces at Guantánamo Bay, Cuba, for almost six years. Mr. Khadr was taken prisoner on July 27, 2002 in Afghanistan, as part of military action taken against Taliban and Al Qaeda forces after the September 11, 2001 attacks in New York City and Washington. He was 15 years old at the time. The United States alleges that near the end of the battle at which he was taken prisoner, Mr. Khadr threw a grenade which killed an American soldier. The United States also alleges that Mr. Khadr conspired with members of Al Qaeda to commit acts of murder and terrorism against U.S. and coalition forces. Mr. Khadr is currently facing charges relating to these allegations, which are being tried by a U.S. Military Commission at Guantánamo Bay.
 The Guantánamo Bay detention camp was established by Presidential Military Order in 2001 (66 FR 57833) for the detention and prosecution of non-U.S. citizens believed to be members of Al Qaeda or otherwise involved in international terrorism. The Order conferred exclusive jurisdiction upon military commissions for the trial of “any and all offences triable by military commission”, and stipulated pursuant to 10 U.S.C. § 836 that applying normal rules of criminal procedure to such trials “is not practicable”. The Order further provided that an individual subject to the order “shall not be privileged to seek any remedy or maintain any proceeding … or to have any such remedy or proceeding sought on the individual’s behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal”. Subsequent orders purported to remove protections of the Geneva Conventions of 1949 (75 U.N.T.S. 31, 85, 135 and 287) and established procedural rules for the military commissions that departed from normal rules of criminal procedure as to the type of evidence that may be admitted, the right to counsel and disclosure of the case to meet, and judicial independence.
 On several occasions, including in February and September of 2003, Canadian officials, including agents of the Canadian Security Intelligence Service (CSIS), attended at Guantánamo Bay and interviewed Mr. Khadr for intelligence and law enforcement purposes. The CSIS agents questioned Mr. Khadr with respect to matters connected to the charges he is now facing, and shared the product of these interviews with U.S. authorities.
 After formal charges were laid against Mr. Khadr in November 2005, he sought disclosure of all documents relevant to these charges in the possession of the Canadian Crown, including the records of the interviews, invoking R. v. Stinchcombe,  3 S.C.R. 326. The appellants formally refused Mr. Khadr’s request in January 2006. Mr. Khadr then applied for an order of mandamus in the Federal Court, which was dismissed, per von Finckenstein J. ((2006), 290 F.T.R. 313, 2006 FC 509). The Federal Court of Appeal allowed Mr. Khadr’s appeal ( 1 F.C.R. 270, 2007 FCA 182), and ordered that unredacted copies of all relevant documents in the possession of the Crown be produced before the Federal Court for review under ss. 38 ff. of the Canada Evidence Act. The Minister of Justice now appeals to this Court, asking that the order of the Federal Court of Appeal be set aside.
3. The Application for Disclosure
(i) Does the Charter Apply?
 If the Guantánamo Bay process under which Mr. Khadr was being held was in conformity with Canada’s international obligations, the Charter has no application and Mr. Khadr’s application for disclosure cannot succeed: Hape R. v. Hape,  2 S.C.R. 292, 2007 SCC 26]. However, if Canada was participating in a process that was violative of Canada’s binding obligations under international law, the Charter applies to the extent of that participation.
 At this point, the question becomes whether the process at Guantánamo Bay at the time that CSIS handed the products of its interviews over to U.S. officials was a process that violated Canada’s binding obligations under international law.
 Issues may arise about whether it is appropriate for a Canadian court to pronounce on the legality of the process at Guantánamo Bay under which Mr. Khadr was held at the time that Canadian officials participated in that process. We need not resolve those issues in this case. The United States Supreme Court has considered the legality of the conditions under which the Guantánamo detainees were detained and liable to prosecution during the time Canadian officials interviewed Mr. Khadr and gave the information to U.S. authorities, between 2002 and 2004. With the benefit of a full factual record, the United States Supreme Court held that the detainees had illegally been denied access to habeas corpus and that the procedures under which they were to be prosecuted violated the Geneva Conventions. Those holdings are based on principles consistent with the Charter and Canada’s international law obligations. In the present appeal, this is sufficient to establish violations of these international law obligations, to which Canada subscribes.
 In Rasul v. Bush, 542 U.S. 466 (2004), the United States Supreme Court held that detainees at Guantánamo Bay who, like Mr. Khadr, were not U.S. citizens, could challenge the legality of their detention by way of the statutory right of habeas corpus provided for in 28 U.S.C. § 2241. This holding necessarily implies that the order under which the detainees had previously been denied the right to challenge their detention was illegal. In his concurring reasons, Kennedy J. noted that “the detainees at Guantánamo Bay are being held indefinitely, and without benefit of any legal proceeding to determine their status” (pp. 487–88). Mr. Khadr was detained at Guantánamo Bay during the time covered by the Rasul decision, and Canadian officials interviewed him and passed on information to U.S. authorities during that time.
 At the time he was interviewed by CSIS officials, Mr. Khadr also faced the possibility of trial by military commission pursuant to Military Commission Order No. 1. In Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), the United States Supreme Court considered the legality of this Order. The court held that by significantly departing from established military justice procedure without a showing of military exigency, the procedural rules for military commissions violated both the Uniform Code of Military Justice (10 U.S.C. § 836) and Common Article 3 of the Geneva Conventions. Different members of the majority of the United States Supreme Court focused on different deviations from the Geneva Conventions and the Uniform Code of Military Justice. But the majority was unanimous in holding that, in the circumstances, the deviations were sufficiently significant to deprive the military commissions of the status of “a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”, as required by Common Article 3 of the Geneva Conventions.
 The violations of human rights identified by the United States Supreme Court are sufficient to permit us to conclude that the regime providing for the detention and trial of Mr. Khadr at the time of the CSIS interviews constituted a clear violation of fundamental human rights protected by international law.
 Canada is a signatory of the four Geneva Conventions of 1949, which it ratified in 1965 (Can. T.S. 1965 No. 20) and has incorporated into Canadian law with the Geneva Conventions Act, R.S.C. 1985, c. G-3. The right to challenge the legality of detention by habeas corpus is a fundamental right protected both by the Charter and by international treaties. It follows that participation in the Guantánamo Bay process which violates these international instruments would be contrary to Canada’s binding international obligations.
 We conclude that the principles of international law and comity that might otherwise preclude application of the Charter
to Canadian officials acting abroad do not apply to the assistance they gave to U.S. authorities at Guantánamo Bay. Given the holdings of the United States Supreme Court, the Hape
comity concerns that would ordinarily justify deference to foreign law have no application here. The effect of the United States Supreme Court’s holdings is that the conditions under which Mr. Khadr was held and was liable for prosecution were illegal under both U.S. and international law at the time Canadian officials interviewed Mr. Khadr and gave the information to U.S. authorities. Hence no question of deference to foreign law arises. The
bound Canada to the extent that the conduct of Canadian officials involved it in a process that violated Canada’s international obligations.
In 2010, in the Khadr case, the Supreme Court of Canada was called upon to decide whether the Canadian government must request the United States of America to return a Canadian national detained at Guantanamo Bay, Cuba, to Canada. The Supreme Court stated:
 Omar Khadr, a Canadian citizen, has been detained by the United States government at Guantanamo Bay, Cuba, for over seven years. The Prime Minister asks this Court to reverse the decision of the Federal Court of Appeal requiring the Canadian government to request the United States to return Mr. Khadr from Guantanamo Bay to Canada.
 For the reasons that follow, we agree with the courts below that Mr. Khadr’s rights under s. 7 of the Canadian Charter of Rights and Freedoms were violated. However, we conclude that the order made by the lower courts that the government request Mr. Khadr’s return to Canada is not an appropriate remedy for that breach under s. 24(1) of the Charter. Consistent with the separation of powers and the well-grounded reluctance of courts to intervene in matters of foreign relations, the proper remedy is to grant Mr. Khadr a declaration that his Charter rights have been infringed, while leaving the government a measure of discretion in deciding how best to respond. We would therefore allow the appeal in part.
 Mr. Khadr was 15 years old when he was taken prisoner on July 27, 2002, by U.S. forces Afghanistan. He was alleged to have thrown a grenade that killed an American soldier in the battle in which he was captured. About three months later, he was transferred to the U.S. military installation at Guantanamo Bay. He was placed in adult detention facilities.
 On September 7, 2004, Mr. Khadr was brought before a Combatant Status Review Tribunal which affirmed a previous determination that he was an “enemy combatant”. He was subsequently charged with war crimes and held for trial before a military commission. In light of a number of procedural delays and setbacks, that trial is still pending.
 In February and September 2003, agents from the Canadian Security Intelligence Service (“CSIS”) and the Foreign Intelligence Division of the Department of Foreign Affairs and International Trade (“DFAIT”) questioned Mr. Khadr on matters connected to the charges pending against him and shared the product of these interviews with U.S. authorities. In March 2004, a DFAIT official interviewed Mr. Khadr again, with the knowledge that he had been subjected by U.S. authorities to a sleep deprivation technique, known as the “frequent flyer program”, in an effort to make him less resistant to interrogation. During this interview, Mr. Khadr refused to answer questions. In 2005, von Finckenstein J. of the Federal Court issued an interim injunction preventing CSIS and DFAIT agents from further interviewing Mr. Khadr in order “to prevent a potential grave injustice” from occurring: Khadr v. Canada, 2005 FC 1076,  2 F.C.R. 505, at para. 46. …
 Mr. Khadr has repeatedly requested that the Government of Canada ask the United States to return him to Canada …
 The Prime Minister announced his decision not to request Mr. Khadr’s repatriation on July 10, 2008 …
 On August 8, 2008, Mr. Khadr applied to the Federal Court for judicial review of the government’s “ongoing decision and policy” not to seek his repatriation … He alleged that the decision and policy infringed his rights under s. 7 of the Charter, which states:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
 After reviewing the history of Mr. Khadr’s detention and applicable principles of Canadian and international law, O’Reilly J. concluded that in these special circumstances, Canada has a “duty to protect” Mr. Khadr (2009 FC 405, 341 F.T.R. 300). He found that “[t]he ongoing refusal of Canada to request Mr. Khadr’s repatriation to Canada offends a principle of fundamental justice and violates Mr. Khadr’s rights under s. 7 of the Charter” (para. 92). Also, he held that “[t]o mitigate the effect of that violation, Canada must present a request to the United States for Mr. Khadr’s repatriation to Canada as soon as practicable” (para. 92).
 The majority judgment of the Federal Court of Appeal (per Evans and Sharlow JJ.A.) upheld O’Reilly J.’s order, but defined the s. 7 breach more narrowly. The majority of the Court of Appeal found that it arose from the March 2004 interrogation conducted with the knowledge that Mr. Khadr had been subject to the “frequent flyer program”, characterized by the majority as involving cruel and abusive treatment contrary to the principles of fundamental justice: 2009 FCA 246, 310 D.L.R. (4th) 462. Dissenting, Nadon J.A. reviewed the many steps the government had taken on Mr. Khadr’s behalf and held that since the Constitution conferred jurisdiction over foreign affairs on the executive branch of government, the remedy sought was beyond the power of the courts to grant.
A. Was There a Breach of Section 7 of the Charter?
1. Does the Canadian Charter Apply to the Conduct of the Canadian State Officials Alleged to Have Infringed Mr. Khadr’s Section 7 Charter Rights?
 This question was addressed in Khadr 2008, in which this Court held that the Charter applied to the actions of Canadian officials operating at Guantanamo Bay who handed the fruits of their interviews over to U.S. authorities. This Court held, at para. 26, that “the principles of international law and comity that might otherwise preclude application of the Charter to Canadian officials acting abroad do not apply to the assistance they gave to U.S. authorities at Guantanamo Bay”, given holdings of the Supreme Court of the United States that the military commission regime then in place constituted a clear violation of fundamental human rights protected by international law: see Khadr 2008, at para. 24; Rasul v. Bush, 542 U.S. 466 (2004), and Hamdan v. Rumsfeld, 548 U.S. 557 (2006). The principles of fundamental justice thus required the Canadian officials who had interrogated Mr. Khadr to disclose to him the contents of the statements he had given them. The Canadian government complied with this Court’s order.
 We note that the regime under which Mr. Khadr is currently detained has changed significantly in recent years. The U.S. Congress has legislated and the U.S. courts have acted with the aim of bringing the military processes at Guantanamo Bay in line with international law. (The Detainee Treatment Act of 2005, Pub. L. 109-148, 119 Stat. 2739, prohibited inhumane treatment of detainees and required interrogations to be performed according to the Army field manual. The Military Commissions Act of 2006, Pub. L. 109-366, 120 Stat. 2600, attempted to legalize the Guantanamo regime after the U.S. Supreme Court’s ruling in Hamdan v. Rumsfeld. However, on June 12, 2008, in Boumediene v. Bush, 128 S. Ct. 2229 (2008), the U.S. Supreme Court held that Guantanamo Bay detainees have a constitutional right to habeas corpus, and struck down the provisions of the Military Commissions Act of 2006 that suspended that right.)
 Though the process to which Mr. Khadr is subject has changed, his claim is based upon the same underlying series of events at Guantanamo Bay (the interviews and evidence-sharing of 2003 and 2004) that we considered in Khadr 2008. We are satisfied that the rationale in Khadr 2008 for applying the Charter to the actions of Canadian officials at Guantanamo Bay governs this case as well.
2. Does the Conduct of the Canadian Government Deprive Mr. Khadr of the Right to Life, Liberty or Security of the Person?
 The United States is holding Mr. Khadr for the purpose of trying him on charges of war crimes. The United States is thus the primary source of the deprivation of Mr. Khadr’s liberty and security of the person. However, the allegation on which his claim rests is that Canada has also contributed to his past and continuing deprivation of liberty. To satisfy the requirements of s. 7, as stated by this Court in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1,  1 S.C.R. 3, there must be “a sufficient causal connection between [the Canadian] government’s participation and the deprivation [of liberty and security of the person] ultimately effected” (para. 54).
 An applicant for a Charter remedy must prove a Charter violation on a balance of probabilities (R. v. Collins,  1 S.C.R. 265, at p. 277). It is reasonable to infer from the uncontradicted evidence before us that the statements taken by Canadian officials are contributing to the continued detention of Mr. Khadr, thereby impacting his liberty and security interests. In the absence of any evidence to the contrary (or disclaimer rebutting this inference), we conclude on the record before us that Canada’s active participation in what was at the time an illegal regime has contributed and continues to contribute to Mr. Khadr’s current detention, which is the subject of his current claim. The causal connection demanded by Suresh between Canadian conduct and the deprivation of liberty and security of person is established.
3. Does the Deprivation Accord With the Principles of Fundamental Justice?
 We have concluded that the conduct of the Canadian government is sufficiently connected to the denial of Mr. Khadr’s liberty and security of the person. This alone, however, does not establish a breach of Mr. Khadr’s s. 7 rights under the Charter. To establish a breach, Mr. Khadr must show that this deprivation is not in accordance with the principles of fundamental justice.
 The principles of fundamental justice “are to be found in the basic tenets of our legal system”: Re B.C. Motor Vehicle Act,  2 S.C.R. 486, at p. 503. They are informed by Canadian experience and jurisprudence, and take into account Canada’s obligations and values, as expressed in the various sources of international human rights law by which Canada is bound. …
 We conclude that Canadian conduct in connection with Mr. Khadr’s case did not conform to the principles of fundamental justice. That conduct may be briefly reviewed. The statements taken by CSIS and DFAIT were obtained through participation in a regime which was known at the time to have refused detainees the right to challenge the legality of detention by way of habeas corpus. It was also known that Mr. Khadr was 16 years old at the time and that he had not had access to counsel or to any adult who had his best interests in mind. As held by this Court in Khadr 2008, Canada’s participation in the illegal process in place at Guantanamo Bay clearly violated Canada’s binding international obligations (Khadr 2008, at paras. 23–25; Hamdan v. Rumsfeld). In conducting their interviews, CSIS officials had control over the questions asked and the subject matter of the interviews … Canadian officials also knew that the U.S. authorities would have full access to the contents of the interrogations (as Canadian officials sought no restrictions on their use) by virtue of their audio and video recording … The purpose of the interviews was for intelligence gathering and not criminal investigation. While in some contexts there may be an important distinction between those interviews conducted for the purpose of intelligence gathering and those conducted in criminal investigations, here, the distinction loses its significance. Canadian officials questioned Mr. Khadr on matters that may have provided important evidence relating to his criminal proceedings, in circumstances where they knew that Mr. Khadr was being indefinitely detained, was a young person and was alone during the interrogations. Further, the March 2004 interview, where Mr. Khadr refused to answer questions, was conducted knowing that Mr. Khadr had been subjected to three weeks of scheduled sleep deprivation, a measure described by the U.S. Military Commission in Jawad as designed to “make [detainees] more compliant and break down their resistance to interrogation” (para. 4).
 This conduct establishes Canadian participation in state conduct that violates the principles of fundamental justice. Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.
 We conclude that Mr. Khadr has established that Canada violated his rights under s. 7 of the Charter.
B. Is the Remedy Sought Appropriate and Just in All the Circumstances?
 In previous proceedings (Khadr 2008), Mr. Khadr obtained the remedy of disclosure of the material gathered by Canadian officials against him through the interviews at Guantanamo Bay. The issue on this appeal is whether the breach of s. 7 of the Charter entitles Mr. Khadr to the remedy of an order that Canada request of the United States that he be returned to Canada. Two questions arise at this stage: (1) Is the remedy sought sufficiently connected to the breach? and (2) Is the remedy sought precluded by the fact that it touches on the Crown prerogative power over foreign affairs?
 The prudent course at this point, respectful of the responsibilities of the executive and the courts, is for this Court to allow Mr. Khadr’s application for judicial review in part and to grant him a declaration advising the government of its opinion on the records before it which, in turn, will provide the legal framework for the executive to exercise its functions and to consider what actions to take in respect of Mr. Khadr, in conformity with the Charter.
 The appeal is allowed in part. Mr. Khadr’s application for judicial review is allowed in part. This Court declares that through the conduct of Canadian officials in the course of interrogations in 2003–2004, as established on the evidence before us, Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter
, contrary to the principles of fundamental justice.
In 2010, in the DRC case, Germany’s Federal Court of Justice was called upon to decide whether to remand in pre-trial custody a national of the Democratic Republic of the Congo who had been living in Germany. The Court summarized the facts of the case as follows:
The subject of the arrest warrant is the allegation that as the president of the paramilitary militia organisation “Forces Démocratiques de Libération du Rwanda” [Democratic Forces for the Liberation of Rwanda] (hereafter FDLR), which is operating in the provinces North Kivu and South Kivu of the Democratic Republic of [the] Congo … , the accused is criminally liable because he is responsible as superior for crimes against humanity and war crimes and as the ringleader of a terrorist group abroad.
The Court held:
4. The strong suspicion that the accused committed the aforementioned crime justifies in and of itself the continued pre-trial custody. …
Moreover, custody is justified by the existence of the danger of absconding and collusion …
6. The particular conditions necessary for extending pre-trial custody beyond the period of six months … are fulfilled. Because of particular difficulties faced by the investigations and due to their sizable scope, it has not yet been possible to reach a judgment and therefore the continuation of pre-trial custody is justified.
After the accused’s arrest, a number of investigations were conducted, some of which were extensive and time-intensive. The crimes were largely committed in the DRC and thus in a Central-African country. Their prosecution by the German criminal authorities required inter alia various investigative measures involving mutual assistance requests to foreign authorities. …
The continued pre-trial custody is not disproportionate to the crimes which the accused allegedly committed.
In its judgment in the Jamal Mustafa Yousef’Abdullah (Hussin) case in 2005, Israel’s High Court of Justice stated:
With respect to the petitioner’s arguments relating to the lack of judicial review of the holding of detainees pursuant to the expulsion order, this question does not directly relate to the petitioner’s case, there being no impulse to expel him immediately to Jordan. Holding him in custody is necessitated by the temporary order that this court issued at his request, to prevent his expulsion abroad. It is observed, however, that judicial intervention with regard to detention orders is indeed necessary (HCJ 3239/02, Marab’e v. Commander of IDF Forces, P. D. 57 (2) 349). Judicial intervention is a barrier to arbitrariness. It is necessitated by the principle of the rule of law and principles of international law, which require respect for the rights of protected persons. The Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949 (hereafter – the Fourth Geneva Convention) includes a general provision, whereby (article 27):
Protected persons are entitled, in all circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs. They shall at all time be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.
The Fourth Geneva Convention does not include, indeed, provisions with respect to fixed periods of detention and times for judicial intervention in detention, but their specification of the arrangements of judicial review is proper and required under the principles of customary international law (compare, Marab
, at pp. 369–370). Indeed, as the respondent indicated, the state is acting to create as soon as possible an internal judicial-review apparatus – alongside review of this court – with respect to holding in custody persons designated for expulsion. It is proper that this apparatus be completed within a reasonable time.
In 2009, in the Fujimori case
, the Special Criminal Chamber of Peru’s Supreme Court of Justice was called upon to decide whether the former Peruvian president was criminally responsible for acts committed in 1991 and 1992 in the context of anti-terror operations. He was found guilty of several offences under domestic criminal law, including the abduction of two officials after his coup d’état
in 1992. The Court held that “the legal guarantee of habeas corpus
cannot be suspended”.
In its judgment in the Alejano case in 2005, the Supreme Court of the Philippines stated:
The remedy of habeas corpus has one objective: to inquire into the cause of detention of a person. The purpose of the writ is to determine whether a person is being illegally deprived of his liberty. If the inquiry reveals that the detention is illegal, the court orders the release of the person. If, however, the detention is proven lawful, then the habeas corpus proceedings terminate. The use of habeas corpus is thus very limited. It is not a writ of error. Neither can it substitute for an appeal.
In its judgment in the Machchavallavan case in 2005, the Supreme Court of Sri Lanka stated:
The writ of habeas corpus is a writ of remedial nature and is available as a remedy in all cases of wrongful deprivation of personal liberty. The basis of the writ of habeas corpus is the illegal detention or imprisonment, which is incapable of legal justification …
Habeas corpus, unlike other prerogative orders still remains as a writ. It is not discretionary and therefore it cannot be denied because there may be some alternative remedy. As pointed out by Wade (Administrative Law, 9th Edition, 2004, pg. 594):
“The writ may be applied for by any prisoner, or by anyone acting on his behalf, without regard to nationality, since ‘every person within the jurisdiction enjoys the equal protection of our laws’. It may be directed against the gaoler, often the appropriate prison governor, or against the authority ordering the detention, e.g. the Home Secretary. It is not discretionary, and it cannot therefore be denied because there may be some alternative remedy. There is no time limit. The defense will not always be statutory.”
It is also to be borne in mind that the writ of habeas corpus potentially has a very wide scope as it is directly linked to the liberty of citizens. Blackstone referring to the writ of habeas corpus, had stated that, (Commentaries, BK III, 12th Edition, 1794, pg. 131):
“the king is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted.”
In 2010, in the Akilan case, Sri Lanka’s High Court of Vavuniya stated:
This Habeas corpus application … [was] filed in February this year. On 30.03.2010 [counsel for] the State … stated to court that he would contact the AG [Attorney-General] for further instructions … The court notes that even after two months … the Commissioner of rehabilitation is not in a position to inform court about any decision taken by him. … For these reasons the court orders that the detained person … should be discharged.
In a subsequent order, the court stated:
This habeas corpus application was filed by … the father [of] … who is detained at the Nellukiulam Technical Collage detention camp.
The High courts are empowered to inquire into Habeas corpus applications under section 154 P(4) (a) of the 13th amendment to the constitution. The said provision empowers the High [court] of the province in which a person is being detained unlawfully to inquire [into] the matter and to make appropriate order if an Habeas corpus application is filed on his behalf.
… [the detainee] was working as a field officer at the Veterinary department [when] on 29.11.2008 the LTTE [Liberation Tigers of Tamil Eelam] abducted him by force and gave him arms training forcefully for four months … [He] escaped from the LTTE on 06.02.2009 and … then surrendered to the Army. Thereafter he was handed over to the Neullukumam detention camp by the armed forces.
Par[agraph] 9 of the petition states that [the detainee] is unlawfully detained …
On 30.03.2010 the State counsel stated to court that the Habeas corpus application is an application seeking the intervention to court to find out the whereabouts of the … [person], and when it is known … where the … [person] is kept or detained the proceeding in the application should come to an end.
This particular submission points out to only a fraction of the Habeas corpus application[.] The words “in respect of persons illegally detained within the province” … in section 154(P4) (a) in the Constitution … [provides] that the court has the power to know whether a person[,] in this case … [,] is detained in a lawful manner or in a[n] unlawful manner
The Habeas corpus application was made on 08.02.2010. The 5th defendant[,] the Commissioner of rehabilitation[,] did not file any objection or affidavit on 08.03.2010, 30.03.2010, 24.05.2010 and 25.05.2010 on which dates the case was called in open court. Therefore … the 5th defendant who has the authority to decide about the discharge of … [The detainee] did not show reasons personally or through the State counsel as to why [he] should be continued to be detained. Therefore the order made by this court on 24.4.2010 on the basis – unlawful detention as per section 154 P (4)(a) (persons illegally detained within the province) [–] cannot be considered to be an order of per incuriam.
United Kingdom of Great Britain and Northern Ireland
In 2002, in the Abassi case, the England and Wales Court of Appeal stated:
1. Feroz Ali Abbasi, the first claimant, is a British national. He was captured by United States forces in Afghanistan. In January 2002 he was transported to Guantanamo Bay in Cuba, a naval base on territory held by the United States on long lease pursuant to a treaty with Cuba. By the time of the hearing before us he had been held captive for eight months without access to a court or any other form of tribunal or even to a lawyer. These proceedings, brought on his behalf by his mother, the second claimant, are founded on the contention that one of his fundamental human rights, the right not to be arbitrarily detained, is being infringed. They seek, by judicial review, to compel the Foreign Office to make representations on his behalf to the United States Government or to take other appropriate action or at least to give an explanation as to why this has not been done.
12. On 19 February 2002 three prisoners detained at Guantanamo Bay, two British and one Australian, commenced a civil action in the District Court of Columbia – Rasul et al. v George Walker Bush et al. in which they petitioned for a writ of habeas corpus. The government moved to dismiss the action for want of jurisdiction. A similar motion was brought to dismiss an action brought by relatives of ten Korean citizens, who were also detained at Guantanamo Bay – Odah et al. v United States of America et al. The petitioners sought an order that the detainees be informed of the charges, if any, against them, be permitted to consult with counsel and have access to a court or other impartial tribunal. The Court treated this as an application for habeas corpus. After hearing argument the Court ruled that the military base at Guantanamo Bay was outside the sovereign territory of the United States and that, in consequence of this fact and the fact that the claimants were aliens, the Court had no jurisdiction to entertain their claims. The position would have been different had they been American subjects.
15. We are informed that the decision in Rasul is subject to appeal. We are further informed that regardless of the outcome of the appeal, a petition for certiorari is almost certain to be filed with the Supreme Court. In these circumstances we cannot proceed on the basis that the last word has been spoken by the United States courts on their jurisdiction to entertain a claim for habeas corpus on behalf of detainees at Guantanamo. On the face of it we find surprising the proposition that the writ of the United States courts does not run in respect of individuals held by the government on territory that the United States holds as lessee under a long term treaty.
Our view of Mr Abbasi’s predicament
58. Mr Blake [appearing as counsel for the claimants] has founded his case upon Mr Abbasi’s predicament as it currently appears. If the decision of the District Court of Columbia accurately represents the law of the United States, then the United States executive is detaining Mr Abbasi on territory over which it has total control in circumstances where Mr Abbasi can make no challenge to his detention before any court or tribunal. How long this state of affairs continues is within the sole control of the United States executive. Mr Blake contends that this constitutes arbitrary detention contrary to the fundamental norms of international law. It is not the fact that Mr Abbasi is detained on which Mr Blake relies – it is the fact that Mr Abbasi has no means of challenging the legality of his detention. It is this predicament which, so Mr Blake contends, gives rise to a duty on the part of the Foreign Secretary to come to Mr Abbasi’s assistance. That assistance is claimed as a matter of last resort. We do not consider that we can deal satisfactorily with this appeal without addressing those submissions and we consider, in the light of the jurisprudence discussed above, that it is open to us to do so.
59. The United Kingdom and the United States share a great legal tradition, founded in the English common law. One of the cornerstones of that tradition is the ancient writ of habeas corpus, recognised at least by the time of Edward I, and developed by the 17th Century into “the most efficient protection yet developed for the liberty of the subject” (per Lord Evershed MR, Ex p Mwenya  1 QB 241, 292, citing Holdsworth’s History of English Law, vol 9 pp.108-125). The court’s jurisdiction was recognised from early times as extending to any part of the Crown’s dominions:
“for the King is at all times entitled to have an account why the liberty of any of his subjects is restrained wherever that restraint is inflicted”
(Blackstone, Commentaries (1768) vol 3 p.131, cited by Lord Evershed MR, ibid, p.292; see also the recent review of the authorities by Laws LJ, R (Bancoult) v Foreign Secretary  2 WLR 1219, 1236).
60. The underlying principle, fundamental in English law, is that every imprisonment is prima facie unlawful, and that:
“… no member of the executive can interfere with the liberty… of a British subject except on the condition that he can support the legality of his action before a court of justice” (R v Home Secretary ex p Khawaja  1 AC 74, 110, per Lord Scarman; citing the classic dissenting judgment of Lord Atkin in Liversidge v Anderson  AC 206, 245 and Eshugbayi Eleko v Government of Nigeria  AC 662, 670).
This principle applies to every person, British citizen or not, who finds himself within the jurisdiction of the court: “He who is subject to English law is entitled to its protection.” (per Lord Scarman, ibid p.111). It applies in war as in peace; in Lord Atkin’s words (written in one of the darkest periods of the last war):
“In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.” (Liversidge v Anderson  AC 206, 245 at p.244)
61. As one would expect, endorsement of this common tradition is no less strong in the United States. In Fay v Noia (1963) 372 US 391, 400, Justice Brennan referred to:
“the ‘extraordinary prestige’ of the Great Writ, habeas corpus ad subjiciendum, in Anglo-American jurisprudence… It is ‘a writ antecedent to statute, and throwing its root deep into the genius of our common law… It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift remedy in all cases of illegal restraint or confinement…’” (adopting the words of Lord Birkenhead LC, in Secretary of State v O’Brien  AC 603, 609).
62. Like Lord Atkin, he emphasised its importance in times of national emergency:
“It is no accident that habeas corpus has time and again played a central role in national crises, wherein the claims of order and liberty clash most acutely, not only in England in the 17th Century, but also in America from our very beginnings and today.” (ibid p. 401)
63. The recognition of this basic protection in both English and American law long pre-dates the adoption of the same principle as a fundamental part of international human rights law. Of the many source documents to which we have been referred, it is enough to cite the International Covenant of Civil and Political Rights, to which the United Kingdom and the United States are parties. Article 9, which affirms “the right to liberty and security of person” provides:
“4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that a court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”
By Article 2, each state party undertakes to
“ensure to all individuals within its territory and subject to its jurisdiction” the rights recognised by the Covenant “without distinction of any kind, such as… national origin…”
64. For these reasons we do not find it possible to approach this claim for judicial review other than on the basis that, in apparent contravention of fundamental principles recognised by both jurisdictions and by international law, Mr Abbasi is at present arbitrarily detained in a “legal black-hole”.
65. That is not to say that his detention as an alleged “enemy combatant” may not be justified. This court has very recently had occasion to consider the legitimacy of legislation that empowers the Secretary of State to detain within this jurisdiction aliens who are suspected of being international terrorists – A, X and Y and Others v Secretary of State for the Home Department  EWCA Civ 1502. We would endorse the summary of the position under international law of Brooke LJ at paragraph 130:
“What emerges from the efforts of the international community to introduce orderly arrangements for controlling the power of detention of non-nationals is a distinct movement away from the doctrine of the inherent power of the state to control the treatment of non-nationals within its borders as it will towards a regime, founded on modern international human rights norms, which is infused by the principle that any measures that are restrictive of liberty, whether they relate to nationals or non-nationals, must be such as are prescribed by law and necessary in a democratic society. The state’s power to detain must be related to a recognised object and purpose, and there must be a reasonable relationship of proportionality between the end and the means. On the other hand, both customary international law and the international treaties by which this country is bound expressly reserve the power of a state in time of war or similar public emergency to detain aliens on grounds of national security when it would not necessarily detain its own nationals on those grounds.”
These comments can be applied with equal force to those suspected of having taken part in military operations involving terrorist organisations.
66. What appears to us to be objectionable is that Mr Abbasi should be subject to indefinite detention in territory over which the United States has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal. It is important to record that the position may change when the appellate courts in the United States consider the matter. The question for us is what attitude should the courts in England take pending review by the appellate courts in the United States, to a detention of a British Citizen the legality of which rests (so the decisions of the United States Courts so far suggest) solely on the dictate of the United States Government, and, unlike that of United States’ citizens, is said to be immune from review in any court or independent forum.
67. It is clear that there can be no direct remedy in this court. The United States Government is not before the court, and no order of this court would be binding upon it. Conversely, the United Kingdom Government, which, through the Secretaries of State is the respondent to these proceedings, has no direct responsibility for the detention. Nor is it suggested that it has any enforceable right, or even standing, before any domestic or international tribunal to represent the rights of the applicant, or compel access to a court.
Is the conduct of the Secretary of State justiciable?
68 Mr Blake submitted that we should find that the Foreign Secretary owed Mr Abbasi a duty to respond positively to his, and his mother’s, request for diplomatic assistance …
69. It is clear that international law has not yet recognised that a State is under a duty to intervene by diplomatic or other means to protect a citizen who is suffering or threatened with injury in a foreign State … Mr Blake accepted this to be the case, but suggested that our municipal law should lead so that international law may follow. In these circumstances it does not seem to us that Mr Blake can derive any assistance from established principles of international law.
70. We turn to Mr Blake’s reliance on the European Convention on Human Rights and the Human Rights Act. Section 2 of the Act requires us to take into account any relevant decisions of the Strasbourg Court. There are two recent decisions which are particularly in point. In Al-Adsani v United Kingdom (2002) 34 EHRR 11 the applicant, who had joint British and Kuwaiti citizenship, wished to pursue proceedings in England against the Government of Kuwait in respect of torture, to which he alleged he had been subjected in Kuwait …
72. In Bankovic and Others v Belgium and Others (App. No. 52207/99) [11 BHRC 435] citizens of the Federal Republic of Yugoslavia (‘FRY’) sought to complain to the Strasbourg Court that deaths and injuries caused by air strikes carried out by members of Nato in the course of the conflict in Kosovo violated, among others, Article 2 of the Convention …
76. We derive the following principles from the decisions considered above:
i. The jurisdiction referred to in Article 1 of the Convention will normally be territorial jurisdiction.
ii. Where a State enjoys effective control of foreign territory, that territory will fall within its jurisdiction for the purposes of Article 1.
iii. Where, under principles of international law, a state enjoys extra-territorial jurisdiction over an individual and acts in the exercise of that jurisdiction, that individual will be deemed to be within the jurisdiction of the state for the purposes of Article 1, insofar as the action in question is concerned.
77. These principles come nowhere near rendering Mr Abbasi within the jurisdiction of the United Kingdom for the purposes of Article 1 on the simple ground that every state enjoys a degree of authority over its own nationals. Mr Blake has not identified any relevant control or authority exercised by the United Kingdom over Mr Abbasi in his present predicament. Nor has he identified any act of the United Kingdom government of which complaint can be made that it violates Mr Abbasi’s human rights.
78. Finally in this context we should refer to the decision of the Commission in Bertrand Russell Peace Foundation v United Kingdom (2 May 1978). The applicant, which was unquestionably within the jurisdiction of the United Kingdom, complained of the failure by the British postal authorities to make representations to the Soviet authorities in respect of the interception and destruction of mail sent by the applicant to Russia. The applicant alleged that this failure violated Articles 8 and 10 of the Convention. The Commission held that the application was not admissible.
While this is a decision of relative antiquity, we are not aware of any more recent Strasbourg jurisprudence that throws doubt on it. The principles that it enunciates are fatal to this limb of the applicants’ argument.
79. For these reasons we do not consider that the European Convention on Human Rights and the Human Rights Act afford any support to the contention that the Foreign Secretary owes Mr Abbasi a duty to exercise diplomacy on his behalf.
80. If Mr Blake is unable to demonstrate that, either through the incorporation of international law or under the Human Rights Act, Mr Abbasi enjoys a right to diplomatic assistance under our domestic law, do the authorities relied upon by Mr Greenwood [appearing as counsel for the defendants] close the door to any possibility of establishing such a right by way, as Mr Blake would contend, of a beneficial development of our public law? The authorities relied upon by Mr Greenwood … are powerful indeed. There are, however, three considerations which have led us to reject the proposition that there is no scope for judicial review of a refusal to render diplomatic assistance to a British subject who is suffering violation of a fundamental human right as the result of the conduct of the authorities of a foreign state.
81. The first consideration is the development of the law of judicial review in relation (i) to the doctrine of legitimate expectation and (ii) to the invasion of areas previously immune from review, such as the exercise of the prerogative.
87. The second consideration is that, to a degree, the Foreign and Commonwealth Office have promulgated a policy which, so it seems to us, is capable of giving rise to a legitimate expectation.
96. In Al Adsani v United Kingdom the Government contended, as recorded at paragraph 50, that:
“There were other, traditional means of redress for wrongs of this kind available to the applicant, namely diplomatic representations or an inter-State claim.”
97. In Rasul the United States District Court expressed the “serious concern” that the court’s decision would leave the prisoners without any rights, and recorded the government’s recognition that:
“these aliens fall within the protections of certain provisions of international law and that diplomatic channels remain an ongoing and viable means to address the claims raised by these aliens.” (p.2)
98. These statements reflect the fact that, to use the words of Everett, it must be a ‘normal expectation of every citizen’ that, if subjected abroad to a violation of a fundamental right, the British Government will not simply wash their hands of the matter and abandon him to his fate.
106. We would summarise our views as to what the authorities establish as follows:
i. It is not an answer to a claim for judicial review to say that the source of the power of the Foreign Office is the prerogative. It is the subject matter that is determinative.
ii. Despite extensive citation of authority there is nothing which supports the imposition of an enforceable duty to protect the citizen. The European Convention on Human Rights does not impose any such duty. Its incorporation into the municipal law cannot therefore found a sound basis on which to reconsider the authorities binding on this court.
iii. However the Foreign Office has discretion whether to exercise the right, which it undoubtedly has, to protect British citizens. It has indicated in the ways explained what a British citizen may expect of it. The expectations are limited and the discretion is a very wide one but there is no reason why its decision or inaction should not be reviewable if it can be shown that the same were irrational or contrary to legitimate expectation; but the court cannot enter the forbidden areas, including decisions affecting foreign policy.
iv. It is highly likely that any decision of the Foreign and Commonwealth Office, as to whether to make representations on a diplomatic level, will be intimately connected with decisions relating to this country’s foreign policy, but an obligation to consider the position of a particular British citizen and consider the extent to which some action might be taken on his behalf, would seem unlikely itself to impinge on any forbidden area.
v. The extent to which it may be possible to require more than that the Foreign Secretary give due consideration to a request for assistance will depend on the facts of the particular case.
Are the applicants entitled to relief in the present case?
107. We have made clear our deep concern that, in apparent contravention of fundamental principles of law, Mr Abbasi may be subject to indefinite detention in territory over which the United States has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal. However, there are a number of reasons why we consider that the applicants’ claim to relief must be rejected:
i. It is quite clear from Mr Fry’s [Deputy Under-Secretary of State for Foreign and Commonwealth Affairs, appearing as witness] evidence that the Foreign and Commonwealth Office have considered Mr Abbasi’s request for assistance. He has also disclosed that the British detainees are the subject of discussions between this country and the United States both at Secretary of State and lower official levels. We do not consider that Mr Abbasi could reasonably expect more than this. In particular, if the Foreign and Commonwealth Office were to make any statement as to its view of the legality of the detention of the British prisoners, or any statement as to the nature of discussions held with United States officials, this might well undermine those discussions.
ii. On no view would it be appropriate to order the Secretary of State to make any specific representations to the United States, even in the face of what appears to be a clear breach of a fundamental human right, as it is obvious that this would have an impact on the conduct of foreign policy, and an impact on such policy at a particularly delicate time.
iii. The position of detainees at Guantanamo Bay is to be considered further by the appellate courts in the United States. It may be that the anxiety that we have expressed will be drawn to their attention. We wish to make it clear that we are only expressing an anxiety that we believe was felt by the court in Rasul. As is clear from our judgment, we believe that the United States courts have the same respect for human rights as our own.
iv. The Inter-American Commission on Human Rights has taken up the case of the detainees. It is as yet unclear what the result of the Commission’s intervention will be. It is not clear that any activity on the part of the Foreign and Commonwealth Office would assist in taking the matter further while it is in the hands of that international body.
108. For all these reasons the application before us must be dismissed.
United Kingdom of Great Britain and Northern Ireland
In 2006, in the Al-Rawi case, the England and Wales Court of Appeal stated:
1. Introductory The first three appellants (“the detainee claimants”) are imprisoned by the American authorities in the detention facility at Guantanamo Bay. They were previously resident in the United Kingdom, having been granted indefinite leave to remain. They are not British nationals. Two of them, Mr El Banna and Mr Deghayes, have been granted asylum here. The other appellants (“the family claimants”) are members of their families. They are all resident in the United Kingdom. On behalf of all the appellants representations have been made to the Secretary of State for Foreign and Commonwealth Affairs (the first respondent) that he (Mrs Beckett had not then succeeded Mr Straw in that office) should make a formal request of the American authorities for the release of the detainee claimants. He declined to do so (the first respondent has now issued a request in respect of Mr Al Rawi, but on a basis different from that urged by the appellants). So the appellants sought orders of the High Court to the effect that the first respondent should make the request. The evidence is that it is against her (and her predecessor’s) better judgment to do so. She considers that it would probably be seen by the United States as unjustified special pleading by the United Kingdom, and would be likely to be both ineffective and counterproductive.
2. On conventional public law principles that would have been the end of the matter. The first respondent’s judgment could hardly be impugned as perverse in the Wednesbury sense ( 1 KB 223); although, as we shall show, Mr Rabinder Singh QC for the appellants has in fact sought to mount a Wednesbury challenge. But in any case the conduct of foreign relations by the executive government of the United Kingdom would have been regarded as beyond the scope of judicial review. A generation or more ago the courts would we think have said there was no jurisdiction to conduct such a review. More recently the line would have been – has been – that the conduct of foreign relations is so particularly the responsibility of government that it would be wrong for the courts to tread such ground; and aside from the division of constitutional territory, the courts have not the competence to pass objective judgment, hardening into law, in so intricate an area of State practice. However in this case, on 16 February 2006, Collins J granted permission to seek judicial review of the United Kingdom’s response to requests for assistance in securing the release and return of the detainee claimants. The case was heard by the Divisional Court (Latham LJ and Tugendhat J) on 22 and 23 March 2006. No point as to jurisdiction was taken. The Foreign Secretary and the Home Secretary were both impleaded, respectively as first and second respondent, the latter because the appellants sought relief which would secure the re-admission of the detainee claimants into the United Kingdom. The Divisional Court dismissed the application on 4 May 2006. Brooke LJ granted permission to appeal on 15 May 2006 and directed that the appeal be expedited. The appeal was argued before us over three days from 24 to 26 July 2006. The case could hardly have got less summary treatment at the hands of the courts.
3. What has been the engine of so painstaking a review in an area which in recent years was thought barely apt for judicial review at all? The prisoners at Guantanamo Bay, some of them at least, have suffered grave privations. In this appeal we should in our judgment proceed on the premise that the detainee claimants have been subjected at least to inhuman and degrading treatment. We say at least; the appellants claim they have been tortured. Although the respondents certainly make no unqualified admission of such misconduct (and the United States authorities have consistently denied any allegations of ill treatment), they do not as we understand it suggest that we should not, strictly for the purpose of this litigation, proceed on the premise we have stated. The family claimants assert that they too have suffered intensely (and continue to do so) by reason of the plight of the detainee claimants. The Divisional Court accepted that their suffering was at a level sufficient to engage Article 3 of the European Convention on Human Rights (“ECHR”) (judgment, paragraph 83).
6. In fact the law of human rights in the context of what has happened at Guantanamo Bay is not virgin to the English courts. They have visited it in an earlier, recent decision, Abbasi  UKHRR 76, in which similar claims were made to some of those put forward in this case. In Abbasi the detainee claimant was a British nationals. The claims were dismissed in the High Court and this court. One might have thought, since here the detainee claimants are not British nationals, that Abbasi is a fortiori the present case, and the respondent Secretaries of State submit that that is so. But various points of distinction are suggested. Clearly we must pay careful attention to the Abbasi decision, as did the Divisional Court.
17. All three detainee claimants have been declared enemy combatants by the Combatant Status Review Tribunal (“CSRT”), which was established by the United States authorities on 7 July 2004 following the decision of the Supreme Court in
Rasul v Bush 542 US 446 (2004). The CSRT is composed of three commissioned officers. Its task is to examine the legality of individual detentions.
24. As we have said paragraphs 16–26 of the Divisional Court’s judgment give details of evidence about the treatment of detainees at Guantanamo Bay generally. There is a summary of material findings set out in a report of five mandate holders of Special Procedures of the Commission on Human Rights, made to the Economic and Social Council of the United Nations and dated 15 February 2006. The report recommended that the Guantanamo Bay detention facility should be closed without further delay. This echoed the views expressed in Resolution 1433(2005) adopted by the Parliamentary Assembly of the Council of Europe on 26 April 2005.
25. There is, of course, some controversy as to the specifics of what has been done at Guantanamo Bay. Again we will not repeat the whole of the Divisional Court’s narrative as to the general position. However it is we think useful to incorporate their account of the forms of treatment which have actually been authorised by the Secretary of Defense. The Divisional Court said this:
“20. … On the 2nd December 2002 [sc. thirteen months after the Guantanamo Bay facility was inaugurated] interrogation techniques contained in the Army Field Manual were approved by the Secretary of Defence which included:
(i) The use of stress positions (like standing) for a maximum of four hours;
(ii) Detention and isolation up to 30 days;
(iii) The detainee may have a hood placed over his head during transportation and questioning;
(iv) Deprivation of light and auditory and literary stimuli;
(v) Removal of all comfort items;
(vi) Forced grooming, shaving the facial hair etc.
(vii) Removal of clothing.
(viii) Interrogation for up to 20 hours.
(ix) Using detainees individual phobias (such as fear of dogs) to induce stress.
21. These guidelines were later rescinded and replaced by a memorandum which in its introduction states that:
‘US Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent to military necessity, in a manner consistent with the principles of the Geneva Convention.’
22. It then authorised inter alia the following techniques; that authorisation remains in force:
(i) Incentive/removal of incentive i.e. comfort items,
(ii) Change of scenery down (sic) might include exposure to extreme temperatures and deprivation and auditory stimuli;
(iii) Environmental manipulation: altering the environment to create moderate discomfort (e.g. adjusting temperature or producing unpleasant smells);
(iv) Sleep adjustment; adjusting the sleep times of the detainee (e.g. reversing sleep cycles from night to day). This technique is not sleep deprivation.
(v) Isolation: clearly isolating the detainee from any other detainee while still complying with basic standards of treatment.”
26. Mr Greenwood [appearing as counsel for the respondents] was at pains to emphasise that the harsher guidelines (subparagraphs (i)–(ix) set out in paragraph 20 above) were operative for a few weeks only, between 2 December 2002 and 15 January 2003. He also submitted that there is material before the court which casts rather a different light on conditions at Guantanamo Bay than the picture of unrelieved misery urged by the appellants. There is, for example, evidence of information and assurances given by the US authorities to FCO officials (in response to concerns raised by Mr Stafford Smith) as to the quality and availability of medical care and facilities. We do not propose to canvass the details: not because we do not respect the acute importance of what has been happening there, but because there is as we have said no substantive contest (strictly for the purpose of the appeal) to the premise upon which the case should in our judgment proceed, namely that the detainee claimants have at least suffered inhuman and degrading treatment. Moreover as an appellate court we are manifestly not equipped to determine the exact state of affairs as a fact-finding exercise; a consideration which has to be borne in mind not only as regards the general situation, but also in relation to the detainee claimants’ specific circumstances, where the evidence – which we do not dismiss – is hearsay reports of assertions by them. As we have already said the specifics of what has been done at Guantanamo Bay are controversial; and in that context it is to be noted that the United States government has expressed reservations about the United Nations mandate holders’ report and has indicated that it does not consider that the report accurately recorded information provided by it. Mr David Richmond, Director-General Defence and Intelligence at the FCO, says this in his first witness statement (14 March 2006):
“56. … [T]here remain serious difficulties in independently assessing what is actually going on at Guantanamo, in part because of the refusal of the US authorities to allow full, unrestricted and unconditional access to the detention facilities by external observers.”
He adds (paragraph 57):
“The United Kingdom Government also attaches considerable weight to public and private assurances from the US Government that no torture is being practised at Guantanamo.
The United States is a close and trusted ally, with a strong tradition of upholding human rights.”
27. The forms of treatment authorised by the Secretary of Defense, whose description by the Divisional Court we have set out, of course constitute hard information.
91. The family claimants rely on their enforced separation from the detainee claimants, with all the suffering that involves, to assert against the respondents violations of their rights under ECHR Articles 3 and 8. As we have indicated, the Divisional Court accepted that their suffering was at a level sufficient to engage Article 3. And for our part we have acknowledged that (for the purposes of Article 14) their complaints fall within the scope or ambit of Article 8. The family claimants also submit that the detainee claimants have been tortured, and the prohibition of torture imposed by international law has special force as a ius cogens erga omnes …
92. In order to sustain this part of their case the family claimants must demonstrate that the first respondent owes a duty, recognised by the law of the ECHR or our domestic law of human rights (or a duty which should be so recognised), to take such action as would provide at least a real prospect of alleviating the suffering of which they complain. The only suggested candidate for such action is the making of representations to the United States …
93. The principal obstacle facing the family claimants’ case on Articles 3 and 8 is not far to seek. It is that the source of their grave misfortunes is the action of a foreign sovereign State. Does, or should, our human rights jurisprudence require the United Kingdom to intervene with the United States out of a duty owed in domestic law to the family claimants?
94. It may well be thought there is a short answer: such a claim is closed off by Abbasi. We repeat for convenience what this court said at paragraph 79:
“… [T]he [ECHR] and the [HRA] [do not] afford any support to the contention that the Foreign Secretary owes Mr Abbasi a duty to exercise diplomacy on his behalf.”
One might be forgiven for supposing that the respondents’ argument in relation to the family claimants, relatives of detainees who are (unlike Abbasi) not British nationals, is a fortiori. But we do not think it would be right to dispose of this important part of the case in so summary a fashion. We have indicated that we would deal with the appellants’ contentions based on the ECHR more closely in addressing this part of the argument. The appellants, of course, seek to distinguish Abbasi. They pray in aid a number of matters, including “the issue of torture” and “the position and Convention claims of the family claimants” …
95. The appellants face the obvious difficulty that the Court of Appeal’s conclusions in Abbasi are cast in general terms. However, events have moved on. We will deal with the family claimants’ ECHR case on its merits.
96. In Bertrand Russell Peace Foundation v. UK (1978) 14 D&R 117 the European Commission of Human Rights had to consider claims under Articles 8 and 10 arising from the failure or refusal of the British postal authorities to complain to the Soviet authorities about the interception and destruction of mail sent by the claimant Foundation to Russia. The Commission declared the complaint to be inadmissible, on the basis that ECHR Article 1 could not be interpreted
“…so as to give rise to any obligation on the Contracting Parties to secure that non-contracting states, acting within their own jurisdiction, respect the rights and freedoms guaranteed by the Convention, even though, as in the present case, their failure to do so may have adverse effects on persons within the jurisdiction of the Contracting State.” (p.124)
97. This line of authority has never been doubted in Strasbourg. The appellants seek to distinguish Bertrand Russell by reference to these submissions (supplementary skeleton 21 July 2006 paragraph 16):
(4) The Foundation was not able to rely upon the State’s erga omnes ius cogens obligation to forestall torture.”
100. Point 4 requires fuller consideration. It is not ruled out by our statement of the premise on which this appeal should proceed, namely that the detainee claimants have been subjected at least to inhuman and degrading treatment – thus not necessarily torture. Very plainly there are allegations of torture. If the British government owed a duty to intercede in case of torture, it would no doubt have to arrive at a judgment, after enquiry as appropriate, as to the likely truth of the allegation; although it is to be noted that the European Court of Human Rights accepts a rule in respect of allegations of violations of Article 3 under the ECHR that they have to be established beyond reasonable doubt: see eg Ocalan v Turkey (12 May 2005) paragraph 180.
101. In A v. Secretary of State for the Home Department (No. 2)  2 AC 221 Lord Bingham of Cornhill said this (paragraph 33):
“It is common ground in these proceedings that the international prohibition of the use of torture enjoys the enhanced status of a jus cogens or peremptory norm of general international law. For purposes of the Vienna Convention, a peremptory norm of general international law is defined in article 53 to mean ‘a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’. In R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3)  1 AC 147, 197-199, the jus cogens nature of the international crime of torture, the subject of universal jurisdiction, was recognised. The implications of this finding were fully and authoritatively explained by the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v Furundzija  ICTY 3, 10 December 1998 in a passage which, despite its length, calls for citation …”
Part of the passage there cited reads:
“b) The Prohibition Imposes Obligations Erga Omnes.
151. Furthermore, the prohibition of torture imposes upon States obligations erga omnes, that is, obligations owed towards all the other members of the international community, each of which then has a correlative right. In addition, the violation of such an obligation simultaneously constitutes a breach of the correlative right of all members of the international community and gives rise to a claim for compliance accruing to each and every member, which then has the right to insist on fulfillment of the obligation or in any case to call for the breach to be discontinued.
152. Where there exist international bodies charged with impartially monitoring compliance with treaty provisions on torture, these bodies enjoy priority over individual States in establishing whether a certain State has taken all the necessary measures to prevent and punish torture and, if they have not, in calling upon that State to fulfill its international obligations. The existence of such international mechanisms makes it possible for compliance with international law to be ensured in a neutral and impartial manner.
(c) The Prohibition Has Acquired the Status of Jus Cogens.
153. While the erga omnes nature just mentioned appertains to the area of international enforcement (lato sensu), the other major feature of the principle proscribing torture relates to the hierarchy of rules in the international normative order. Because of the importance of the values it protects, this principle has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules. The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force.
154. Clearly, the jus cogens nature of the prohibition against torture articulates the notion that the prohibition has now become one of the most fundamental standards of the international community. Furthermore, this prohibition is designed to produce a deterrent effect, in that it signals to all members of the international community and the individuals over whom they wield authority that the prohibition of torture is an absolute value from which nobody must deviate.
155. The fact that torture is prohibited by a peremptory norm of international law has other effects at the inter-state and individual levels. At the inter-state level, it serves to internationally de-legitimise any legislative, administrative or judicial act authorising torture. It would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void ab initio, and then be unmindful of a State say, taking national measures authorising or condoning torture or absolving its perpetrators through an amnesty law. If such a situation were to arise, the national measures, violating the general principle and any relevant treaty provision, would produce the legal effects discussed above and in addition would not be accorded international legal recognition. Proceedings could be initiated by potential victims if they had locus standi before a competent international or national judicial body with a view to asking it to hold the national measure to be internationally unlawful; or the victim could bring a civil suit for damage in a foreign court, which would therefore be asked inter alia to disregard the legal value of the national authorising act. What is even more important is that perpetrators of torture acting upon or benefiting from those national measures may nevertheless be held criminally responsible for torture, whether in a foreign State, or in their own State under a subsequent regime. In short, in spite of possible national authorisation by legislative or judicial bodies to violate the principle banning torture, individuals remain bound to comply with that principle. As the International Military Tribunal at Nuremberg put it: ‘individuals have international duties which transcend the national obligations of obedience imposed by the individual State’.”
102. This learning shows that, as a matter of international law, (1) the status of ius cogens erga omnes empowers but does not oblige a State to intervene with another sovereign to insist on respect for the prohibition of torture (paragraph 151 of Prosecutor v Furundzija); (2) special standing is accorded to international bodies charged with impartially monitoring compliance (paragraph 152); (3) there can be no derogation from the prohibition (paragraph 153); (4) the prohibition is to be treated as an absolute value (paragraph 154); (5) any measure authorizing torture is illegitimate and proceedings may be taken to declare it so (paragraph 155); (6) perpetrators of torture may be held criminally responsible in the courts of any State (paragraph 155). These features are a powerful constellation, demonstrating, as Lord Bingham said (paragraph 33), that “[t]here can be few issues on which international legal opinion is more clear than on the condemnation of torture”.
103. But none of this imposes a duty on States, sounding in international law, of the kind for which the appellants must here contend. As a matter of the law of the ECHR, there is nothing to qualify the principle in the Bertrand Russell case. The appellants’ point 4 above appears to possess no more force than the others.
104. There is, however, a further authority to be considered. Before the hearing Brooke LJ drew the parties’ attention to the decision of the Constitutional Court of South Africa in Kaunda v The President of the Republic of South Africa CCT 23/04. The applicants were 69 South African citizens held in Zimbabwe on various charges relating to the allegation of an attempted coup against the President of Equatorial Guinea. The applicants feared extradition to Equatorial Guinea where they might face the death penalty following an unfair trial; and they made grave allegations about the conditions in which they were held in Zimbabwe. They sought orders to require the South African government to make certain representations on their behalf to the governments of both Zimbabwe and Equatorial Guinea, to take steps to secure their release or extradition and to see that their fundamental rights were respected.
105. The highest this authority goes in the appellants’ favour is, we think, a passage in paragraph 69 of the principal judgment delivered by Chaskalson CJ:
“There may thus be a duty on government, consistent with its obligations under international law, to take action to protect one of its citizens against a gross abuse of international human rights norms. A request to the government for assistance in such circumstances where the evidence is clear would be difficult, and in extreme cases possibly impossible to refuse. It is unlikely that such a request would ever be refused by government, but if it were, the decision would be justiciable, and a court could order the government to take appropriate action.”
But it is, we think with respect, very doubtful whether the court intended to vouchsafe an approach that would be more intrusive than that commended by this court in Abbasi, which is much referred to in the judgments in Kaunda. The Chief Justice said:
“77. A decision as to whether, and if so, what protection should be given, is an aspect of foreign policy which is essentially the function of the executive. The timing of representations if they are to be made, the language in which they should be couched, and the sanctions (if any) which should follow if such representations are rejected are matters with which courts are ill equipped to deal. The best way to secure relief for the national in whose interest the action is taken may be to engage in delicate and sensitive negotiations in which diplomats are better placed to make decisions than judges, and which could be harmed by court proceedings and the attendant publicity.
78. This does not mean that South African courts have no jurisdiction to deal with issues concerned with diplomatic protection…
79. For instance if the decision were to be irrational, a court could intervene. This does not mean that the courts would substitute their opinion for that of the government or order the government to provide a particular form of diplomatic protection…
81. What needs to be stressed, however, in the light of some of the submissions made to us in this case, is that government has a broad discretion in such matters which must be respected by our courts …”
106. This marches with this court’s observations in Abbasi at paragraph 106(iii), which we have set out; though it is right that the South African court does not speak in the language of “forbidden areas”. In the result the court refused relief in Kaunda, on the ground that the government’s response to the applicants’ approaches was within the wide margin of discretion which it enjoyed (paragraph 144(10) and (11)).
107. Kaunda is plainly, with great respect, a powerful and important authority. But it cannot in our judgment be treated as an engine to drive a significant change in the law of human rights or in any general principle of international law. In essence it was a domestic constitutional case. It does not push out the edges of ius cogens erga omnes; it does not shift or undercut the rule of the Bertrand Russell decision.
108. There are some other issues on this part of the case. There are first some points on the family claimants’ Article 3 claim. The respondents contend that the Divisional Court erred in holding that their level of suffering passed the Article 3 threshold. We entertain some misgivings as to the Divisional Court’s finding. The test for the gravity of what has to be shown for the purpose of Article 3 has been consistently expressed in many cases. A frequent formulation is that the ill-treatment concerned must attain “a minimum level of severity and [involve] actual bodily injury or intense physical or mental suffering” (see for example Pretty v United Kingdom
(2002) 35 EHRR 1, paragraph 52). However we are not prepared to hold that the Divisional Court’s conclusion was wrong. It is supported by powerful objective evidence. There may no doubt be room for differences of view but (although we are in as good a position to assess the evidence) we see no reason not to respect the lower court’s conclusion.
United Kingdom of Great Britain and Northern Ireland
In 2010, in the Al-Jedda case (No 2), the England and Wales Court of Appeal (Civil Division) was called upon to decide the appeal of Mr Al-Jedda, a national of both the United Kingdom and Iraq, who sought damages for unlawful imprisonment by UK forces in Iraq. The Court of Appeal dismissed the appeal. Lady Justice Arden summarized the background of the case as follows:
1. In this action, Mr Al Jedda, who has both Iraqi and British nationality, seeks damages for unlawful imprisonment by reason of his detention by British forces in a military detention centre in Iraq. On this appeal we have to determine whether this action was properly dismissed by Underhill J on 5 March 2009 following the trial. The period for which damages is claimed constitutes part only of the period for which Mr Al Jedda was detained, namely that following the adoption of the new Constitution of Iraq on 20 May 2006 to 30 December 2007, the date of his release.
2. The claim was raised by amendment. Mr Al Jedda’s original claim was for declaratory relief or habeas corpus. In earlier proceedings, Mr Al Jedda sought declaratory relief and damages under the Human Rights Act 1998 (“HRA”) but the House of Lords held that no such claim lay because the United Kingdom’s obligations had been displaced by its obligations under the UN Charter ( 1 AC 332). The earlier proceedings leading to the decision of the House of Lords are referred to in this judgment as Al Jedda 1. This court in Al Jedda 1 held that, under section 11 of the Private International Law (Miscellaneous Provisions) Act 1995 (“PILA”), the law governing any claim for false imprisonment was that of Iraq. The House of Lords agreed with that holding.
3. In legal terms, this is an unusual case. Mr Al Jedda was detained by British forces in Basra on 10 October 2004 on security grounds. He was suspected of being a member of a terrorist group said to be involved in weapons smuggling and explosive attacks in Iraq. He remained in detention until 30 December 2007. He was at no time charged with any offence. It has been held that he is unable to bring any claim to test the lawfulness of his detention under the HRA (Al Jedda 1
), although, following the dismissal of that claim by the House of Lords, Mr Al Jedda has made an application to the European Court of Human Rights (“the Strasbourg court”). The Grand Chamber of the Strasbourg court had a hearing in his case on 9 June 2010, and judgment from that court is pending. It has also been held that Mr Al Jedda cannot bring any claim in tort under the common law. Notwithstanding that Mr Al Jedda’s detention was by British forces, the lawfulness of his detention can only be determined if, at all, in these proceedings, that is, under the law of Iraq, where the detention occurred.
Lady Justice Arden further stated:
The essential facts for the purposes of this appeal are: (1) Mr Al Jedda was detained pursuant to arrangements agreed between British forces and the Iraqi government prior to the adoption of the new Constitution in fulfilment of the United Kingdom’s obligations under the UN Charter; (2) those arrangements complied with [the 1949] Geneva [Convention] 4; (3) the Iraqi government did not withdraw its agreement to those arrangements after the adoption of the new Constitution; and (4) those arrangements made no provision of any sort for a hearing or any review by an independent judicial officer.
Lady Justice Arden considered the extent to which Article 78 of the 1949 Geneva Convention IV was relevant for determining the legality of the appellant’s detention. She found:
We are concerned with the meaning of Articles 15 and 37(1)(B) of the Iraqi Constitution. The provisions of Article 78 of [the 1949] Geneva [Convention] 4, and of the Siracusa
principles [on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights], are important, but of limited assistance in this task. The former deals with the position of an occupying power and the latter deals with the situation of emergency powers. Neither deals with the relationship between a government and its citizens where there has been no derogation because of an emergency. Under Article 61 of the Iraqi Constitution … , states of emergency can be declared for successive periods of thirty days, and all the necessary powers to deal with the emergency can then be delegated to the Prime Minster. Those powers must be regulated by laws which do not contradict the Constitution but, if they are necessary to deal with the situation (and that involves showing necessity), they may, as I read Article 61, depart from other powers, including Articles 15 and 37(1)(B). I respectfully doubt therefore the utility of praying in aid the turmoil in Iraq: if there was a state of emergency there were other provisions in the Constitution which authorised the taking of other powers which could have been but which were not used.
In contrast to Lady Justice Arden, Lord Justice Elias did take Article 78 of the 1949 Geneva Convention into account in considering the lawfulness of the detention review procedures. Lord Justice Elias found:
Was the continued internment contrary to Iraq law?
132. I first deal with the procedures which enabled the appellant to challenge the legal basis of his detention and then consider whether they were compatible with the law of Iraq.
133. The appellant was initially detained on 10 October 2004 when he was arrested on suspicion of being a member of a terrorist group involved in weapon smuggling and explosive attacks in Iraq. He was released without charge over three years later on 30 December 2007.
134. He does not seek to challenge the legality of the initial period of his detention. His contention is that it became unlawful when the Iraq Constitution came into force on 20 May 2006. It is alleged that certain laws and procedures which had until then justified his detention ceased to do so because they conflicted with Articles of the Constitution.
135. The power of detention was first conferred on the Coalition Provisional Authority (CPA) by a memorandum known as Memorandum No 3 and entitled “Criminal Procedures” (CPA 3). In its original form it was promulgated on 18 June 2003, but it was subsequently revised with effect from 28 June 2004 when the Iraqi interim government was formed; that was prior to the appellant’s detention. Section 6 of the revised version is headed “MNF [Multinational Force] Security Internee Process” and is as follows:
(1) Any person who is detained by a national contingent of the MNF for imperative reasons of security in accordance with the mandate set out in UNSCR [UN Security Council Resolution] 1546 (hereinafter “security internee”) shall, if he is held for a period longer than 72 hours, be entitled to have a review of the decision to intern him.
(2) The review must take place with the least possible delay and in any case must be held no later than 7 days after the date of induction into an internment facility.
(3) Further reviews of the continued detention of any security internee shall be conducted on a regular basis but in any case not later than six months from the date of induction into an internment facility.
(4) The operation, condition and standards of any internment facility established by the MNF shall be in accordance with Section IV of the Fourth Geneva Convention.
(5) Security internees who are placed in internment after 30 June 2004 must in all cases only be held for so long as the imperative reasons of security in relation to the internee exist and in any case must be either released from internment or transferred to the Iraqi jurisdiction no later than 18 months from the date of induction into an MNF internment facility. Any persons under the age of 18 interned at any time shall in all cases be released not later than 12 months after the initial date of internment.
(6) Where it is considered that, for continuing imperative reasons of security, a security internee placed in internment after 30th June 2004 who is over the age of 18 should be retained in internment for longer than 18 months, an application shall be made to the Joint Detention Committee (JDC) for approval to continue internment for an additional period. In dealing with the application the members of the JDC will present recommendations to the co-chairs who must jointly agree that the internment may continue and shall specify the additional period of internment. While the application is being processed the security internee may continue to be held in internment but in any case the application must be finalized not later than two months from the expiration of the initial 18 month internment period.
136. There are, therefore, two different sets of review arrangements. The first, under subsection 3, requires regular reviews throughout the internment. The second, under subsection 6, applies where, as in this case, the internment extends beyond 18 months. There must then be specific approval by the JDC.
137. The review under sub-section 3 was conducted by a body known as the Divisional Internment Review Committee (DIRC). It comprised the general officer commanding (GOC) (multi-national division) South East; the chief of staff of the division, a policy adviser to the GOC; the chief ‘J2’, being a lieutenant and colonel in the intelligence corps; and a commander “legal”, being a lieutenant colonel in the Army Legal Service. All save the policy adviser were senior serving officers.
138. The committee met on average once a month. Its terms of reference required it to review all available evidence, intelligence and other paperwork associated with the internee’s original detention, as well as any subsequently obtained information and any representations from the internee, and to determine whether his continued internment was necessary for imperative reasons of security.
139. Initially, the DIRC had no decision making power; it simply made recommendations to the GOC who had the final say. However, following criticisms of that arrangement in the Divisional Court in the Al-Jedda No 1 case the committee took the power to make the decision itself. I refer below to the nature of those criticisms.
140. The DIRC process was modified from some time in mid-2006. A further body, known as the Combined Review and Release Board (CRRB), was established. The purpose was to involve members of the Iraq government more fully in the detention process. The CRRB comprised representatives of the Iraqi Ministry of Justice, the Ministry of the Interior, and the Human Rights division, and three British officers. It did not have access to all the intelligence information and could merely make recommendations which the DIRC would have to consider. In fact, it did make a recommendation in December 2006 that the appellant should be released. That, however, was not accepted by the DIRC.
141. The procedure under sub-section 6 is rather different. The joint detention committee referred to in that subsection was established by CPA Order No 99 issued on 27 June 2004. It was a large committee numbering up to 21 members and included members of the Iraq interim Government as well as the MNF and a representative from each of the United States and the United Kingdom (who was the ambassador to Iraq). In fact, the task of considering particular cases under the 18 month rule was delegated to a sub-committee known as the Joint Detention Review Committee (JDRC). They had to make a recommendation as to whether the application should be approved or denied but as sub-section 6 makes clear, the co-chairs had the ultimate decision. They had to agree that the internment would continue and also specify any additional period of internment. So the decision was taken at the highest level.
Were the procedures compatible with the law of Iraq?
142. At the hearing before Underhill J, there were three issues which arose under this head. The first was whether CPA 3 continued to form part of the law of Iraq following the adoption of the new constitution. The judge held that it did, and that conclusion is not now challenged.
143. The second issue was whether the procedures complied with Articles 15 and/or 37 of the constitution … The former requires that any deprivation of liberty must be based on a decision by a competent judicial authority; the latter provides that no-one shall be kept in custody except according to a judicial decision. It is not entirely clear whether both these provisions are applicable. It may be that Article 37 is strictly the appropriate provision since this focuses on keeping someone in custody whereas Article 15 seems to focus on the original deprivation of liberty. However, nothing turns on it because it is conceded by Mr Swift [counsel for the Respondent] that at least one of these provisions applies and that the procedures were not strictly compliant with either since they did not involve a determination by a judge.
144. The third question is whether the procedures can be reconciled with the constitution by relying on Article 46 which is as follows: “Restricting or limiting the practice of any of the rights or liberties stipulated in this Constitution is prohibited, except by a law or on the basis of a law, and insofar as that limitation or restriction does not violate the essence of the right.”
145. The contention is that the procedures adopted did not violate the essence of the right in either Article 15 or 37 and were therefore compatible with the Constitution. The essential issue on this ground of the appeal is whether that submission is correct.
147. The fundamental issue is this: were the procedural safeguards adopted to give effect to CPA 3 sufficient to protect the essence of the rights conferred by Articles 15 and/or 37? This involves a consideration of two interrelated questions. First, what is the “essence” of the right conferred by these provisions? Second, do the procedures violate that essence?
148. As to the first question, there are two possible approaches as to what constitutes the essence of these rights. The first focuses on the specific language in the two Articles – the reference to “competent judicial authority” and “judicial decision” respectively – and treats the need for judicial involvement as an essential requirement in any lawful system of monitoring and review. The second concentrates on what the judicial oversight is designed to achieve. The purpose, it is said, is to prevent arbitrary detention taken without legal authority. The judicial role is to provide an independent and objective review of the material evidence, made in good faith, and to determine whether it is in accordance with the law. The reference to judicial authority or a judicial decision is intended to secure the adoption of procedures which will encompass these characteristics. On this analysis the essence of the right conferred by these Articles requires not the involvement of a judge; rather it requires that the decision displays the essential features of these typically judicial characteristics.
149. I have not found this an altogether easy issue to decide. However, on reflection I have come to the conclusion that the latter analysis is correct. I say this for two quite distinct sets of reasons: the first is general in nature; the second focuses on the particular circumstances in which this Constitution was passed.
150. The first is that in the context of depriving someone of liberty, the essence of justice according to law is that there is an objective and independent assessment of the relevant evidence measured against some legal criteria, in this case the alleged infringement of security. A requirement for a judicial decision according to law is the natural and obvious way of encapsulating these qualities. The judge will typically be learned in the law and will be independent of those seeking to justify deprivation of liberty. But it is those judicial qualities and not the status itself which is important. We would not, I think, consider that the decision met the terms of either Article 15 or 37, even if it were taken by an otherwise competent judge, if that judge did not display the qualities of independence, fairness and objectivity. This suggests that the reference to the judge is essentially a shorthand for those particular judicial qualities; requiring a judge to make a decision is the most reliable method of ensuring that the decision will be marked by these characteristics. Moreover, justice is more readily seen to be done where a judge is the decision maker.
151. However, as desirable as it is to require a judge to make these decisions, I do not consider that the involvement of a judge constitutes the essence of the rights conferred by Articles 15 and 37. In my judgment, the essence of the right lies in the characteristics encapsulated in the notion of a judicial decision. The removal of the judge will no doubt make it more difficult to secure the essential qualities of independence, objectivity and good faith, but I do not accept that only judicial procedures can secure the essence of those requirements.
152. Indeed, it seems to me that non-judicial procedures may be capable of better serving a detainee than would judicial procedures, where the reason for the detention is the threat to security. Judges are not in the best position to assess whether national security is threatened or not. They will perforce have to show considerable deference to the views of those more expert and experienced in making security assessments. The key stage in any review will in practice be the stage where that evidence is considered and assessed. A rigorous and independently minded assessor, knowledgeable in security issues, may be more willing and more able than a judge effectively to question security material which is alleged to justify detention.
153. This conclusion is reinforced by the circumstances in which the constitution was passed in this case. First, it was not drafted in a vacuum; the draftsmen would inevitably have had in mind the prevailing situation in Iraq. As Underhill J pointed out, this included particularly grave security problems. Indeed, the need to combat the security threat from terrorist activity is recognised in the constitution itself: see Article 7(2) which provides that “the State shall undertake to combat terrorism in all its forms.”
154. Second, it would have been fully appreciated by the draftsmen that the internment arrangements practised by the occupying forces did not include independent judicial scrutiny of the reasons for detention. Whilst I agree with Arden LJ that the mere fact that CPA 3 was kept in force when the constitution was introduced does not of itself demonstrate that it, or the procedures adopted in pursuance of it, were considered to be compatible with the constitution, nevertheless it seems to me to be of some relevance that nobody appears to have thought at the time that the procedures contravened the Constitution.
155. Third, in an emergency situation which may be declared in accordance with Article 61(9), or during a time of war, the Prime Minister is delegated the power to manage the affairs of the country. He cannot, however, adopt laws which contradict the constitution. It is, I think, unlikely that in such an extreme emergency situation it would be envisaged that detention of those considered to be a threat to the state could be lawful only if ordered by a judge. But that would necessarily follow if the appellant’s argument is correct. In this context it is pertinent to note that even under the European Convention [of Human Rights] the rights conferred by Articles 5 and 6 may be the subject of derogation in time of war or other emergency under Article 15, provided the circumstances are sufficiently pressing.
156. This is not to say that review of detention by an administrative panel is the same as review by a judge. But that is not the issue; the question is whether the use of such a panel is capable of protecting the essence of a judicial review. In principle I think that it is; the central core is an independent and genuine assessment by someone other than the initial decision maker.
157. That still leaves the question whether the procedures actually adopted in this case were sufficiently independent and impartial as to meet the essence of a “judicial” determination. In my view they were. Both the procedures under subsections 3 and 6 of CPA 3 involved consideration of the case by a number of persons some of whom would not have been parties to the original decision, and some are unconnected with the British contingent. They did so on the basis of information available to them, and written submissions from the detainee or his representatives. In my judgment this met the basic standards inherent in the “essence” of the right.
158. This conclusion receives some support from the decision of the Divisional Court in the Al Jedda No 1 case ( EWHC 1809 (Admin); Moses and Richards JJ). They had to consider whether the procedure then in force, namely where the ultimate decision to detain was made by the Commanding Officer following a recommendation by the DIRC, was consistent with the obligations under Article 78 of the  Geneva Convention [IV].
159. This Article provided that a detainee was entitled to a right of appeal or else a periodic review by “a competent body.” One of the issues before the court was whether a decision by the military commander alone could amount to compliance with that provision. The court accepted by analogy with other Articles of that Convention that in order to comply with Article 78 the decision to detain would have to be taken by an administrative board which offered the necessary guarantees of independence and impartiality.
160. The court rejected a submission by the Secretary of State that the Commanding officer was akin to an administrative board and would constitute a “competent body” within the meaning of Article 78; the decision of a single individual would not provide the necessary guarantee of fair treatment. The court continued:
Although the Commander and the panel do not have the qualities of independence and impartiality sufficient to meet the requirements of Article 6 ECHR, we do not think that complaint could properly be made of them in the context of Article 78 of Geneva IV. If, therefore, the decision had been taken jointly by the Commander and the panel, rather than by the Commander on the recommendation of the panel, the procedure would in our view have complied with Article 78.
161. Accordingly once their recommendation for a joint decision had been implemented, as it subsequently was, in the court’s view the procedures complied with Article 78. It follows that in the court’s opinion, although falling short of Article 6 standards, the procedures provided the necessary guarantees of impartiality and independence to satisfy the standards imposed under [the 1949] Geneva [Convention] IV.
162. I agree with that analysis, and in my judgment whilst the procedures did not provide the full institutional independence and impartiality which a judicial procedure would establish, nonetheless compliance with Geneva IV was enough to provide the essence of those characteristics as required by Article 46 of the Iraq constitution.
163. It follows that for these reasons, and also for the reasons given by Sir John Dyson, whose judgment I have read in draft, in my view there is no breach of Iraqi law in this case.
United States of America
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.
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”.
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.
[emphasis in original]
United States of America
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 of America
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.
[emphasis in original]
United States of America
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.”
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 of America
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 of America
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,  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 of America
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.
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.
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.
[emphasis in original; footnote in original omitted]
United States of America
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.
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.
[emphasis in original]
United States of America
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.
[emphasis in original]
United States of America
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.
[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).
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 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.”
. 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.”).
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.
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 of America
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.
[emphasis in original; footnote in original omitted]
United States of America
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  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.
[emphasis in original; footnotes in original omitted]
United States of America
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
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 of America
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.
Applying these factors to the detainees at Guantánamo, the Court held that the petitioners had the protection of the Suspension Clause.
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 . 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.
[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
, 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
. 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.
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 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).
[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 of America
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 of America
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
[emphasis in original]
United States of America
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:
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
. 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
required by Boumediene
, 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.”).
[footnote in original omitted]
In 2004, in its fifth periodic report to the Human Rights Committee, Canada stated:
A number of amendments to the National Defence Act
in 1999 dealt with deprivation of liberty and arbitrary detention. One of the changes was that under the old legislative regime, release from pre-trial custody was done by way of petition to the Minister. Often this was a lengthy process and resulted in longer periods of pre-trial detention. However, under the changes to the Act a military judge now reviews pre-trial custody, in a much speedier fashion, with appeals being heard by the Court Martial Appeal Court.
In 2006, in its fifth periodic report to the Human Rights Committee, Chile stated: “Accused persons who have been deprived of their liberty also have the following rights: … to be brought promptly before the court that ordered the arrest or detention”.
(footnote in original omitted)
In 2007, in its second periodic report to the Human Rights Committee, Croatia stated that its Constitution provides: “Any person arrested or detained shall have the right to take proceedings before a court, which shall decide without delay on the legality of the arrest.”
In 2005, in a reply to a question by a Member of the Bundestag (Lower House of Parliament), a German Minister of State, Federal Foreign Office, wrote:
Does the Federal Government adhere to the view of the previous government that detaining human beings for years, as for example in Guantánamo Bay, in prisons in Afghanistan and at further unknown places, without an independent judicial decision on the deprivation of liberty[,] without possibilities to defend themselves, without assistance of a lawyer, and without an independent judicial trial, is incompatible with the recognized rules of international law and the international covenants to which also the United States have acceded, and what will the Federal Government do to protect at least German nationals from such detention and treatment?
The position of the Federal Government regarding the questions you addressed is unchanged. It is also known to the Government of the United States.
In 2004, in its initial report to the Human Rights Committee, Greece stated:
According to article 20 (1) of the Greek Constitution “every person shall be entitled to receive legal protection by the courts […]”. This right is understood to encompass the right to control by a court of the legality of the detention, irrespective of whether there is a detention pending trial, or any other kind of detention.
In 2007, in its comments to the conclusions and recommendations of the Committee against Torture, Nepal wrote:
Recommendation, paragraph 16 [in which the Committee against Torture, having noted the difficult situation of armed conflict faced by Nepal, expressed concern about the non-compliance with court orders by members of security forces, reportedly including re-arrests.]
16. The Government is committed to the compliance of the orders of the court. During the last two years, [a] total [of] 1287 habeas corpus orders were issued from the courts. Security forces and police have been instructed to strictly comply with all judicial orders and alerted that non-compliance shall not be tolerated. The Government is sincere to extend all cooperation to the enforcement of the court orders and ensure its compliance.
36. The historic Comprehensive [Peace] Agreement [CPA] signed between the Government of Nepal Communist Party (Maoist) on 21 November 2006 has effectively ended the ten year long conflict. This has resulted in the fundamental improvement in the overall human rights situation in Nepal.
A 1998 memorandum by the President of the Philippines, addressed to the Philippine Secretary of Justice, the Solicitor General and the Presidential Chief Legal Counsel, provides:
Pursuant to the 50th Anniversary Celebration of the Universal Declaration on Human Rights, you are hereby directed to jointly undertake the following activities:
1. Review all laws, decrees and executive issuances deemed repressive and ensure that all rights guaranteed in the Philippine Constitution are upheld, promoted and protected.
2. Review the Jurisprudence so that those judicial decisions and procedures not compatible with the standards of human rights and dignity can be brought to the attention of the Supreme Court, in particular, cases of warrantless arrests … and the circumvention of Habeas Corpus proceedings, among others.
In 2009, in its combined third and fourth periodic reports to the Committee against Torture, Sri Lanka stated in relation to persons detained by the police:
28. The right of habeas corpus is a right guaranteed under article 141 of the Constitution and the Court of Appeal has been granted the power to issue orders in the nature of writs of habeas corpus.
In 2012, Switzerland’s Federal Department of Foreign Affairs issued a press release entitled “Switzerland is concerned about the situation of the Palestinian prisoners on hunger strike”, which stated:
Switzerland takes this opportunity to recall the obligations o[f] States to respect international humanitarian law and human rights, in particular with regard to conditions of detention. According to international law, administrative detention can only be applied as an exceptional measure and must be subject to periodic revision and an appeal procedure.
In 2003, in its initial report to the Human Rights Committee, Uganda stated that there are “certain Rights that cannot be derogated from and these include … right to an order of habeas corpus”.
With reference to Article 48(1) of the Constitution of Uganda, the report stated that “where a person is restricted or detained under [emergency laws] the Uganda Human Rights Commission shall review the case not later than 21 days after the commencement of the restriction or detention and after that at intervals of not more than 30 days.”
The report further states:
112. On a review of the case, the Uganda Human Rights Commission may order the release of that person or uphold the grounds by the restriction or detention. Aggrieved persons may also enforce their rights and freedoms in courts of Law in accordance with Article 50 [of the Constitution of Uganda].
250. Under Article 23 (9) of the Constitution, the right to habeas corpus is inviolable and shall not be suspended. Under section 36 of the Judicature Statute, 1996, the High Court may at any time where a person is deprived of his or her personal liberty otherwise than in execution of a lawful sentence, upon complaint made to it by the arrested person or his agent, the High Court shall direct the person in whose custody the arrested person is to produce the detained person in court and shall inquire into the reason for the detention.
In addition, the report stated:
473. It is important to note that … there are areas where derogation is not acceptable under whatever circumstances. They are under article 44.
474. Article 44 of the Constitution of the Republic of Uganda (1995) states that:
Notwithstanding anything in this Constitution, there shall not be derogation from the enjoyment of the following rights and freedoms:
(a) freedom from torture, cruel, inhuman or degrading treatment or punishment;
(b) freedom from slavery or servitude;
(c) right to fair hearing;
(d) right to an order of habeas corpus.
United Kingdom of Great Britain and Northern Ireland
In 2003, during a debate in the House of Lords on the Anti-terrorism, Crime and Security Act 2001 (Continuance in force of sections 21 to 23) Order 2003, the UK Parliamentary Under-Secretary of State, Home Office, stated:
To date, 15 foreign nationals have been detained under Sections 21 to 23 of the Act. Of those, two have voluntarily left the UK. The other 13 remain in detention. The decisions to certify and detain these individuals were based on detailed and compelling intelligence and other material. That material will be examined by the SIAC [Special Immigration Appeals Commission], as provided under ATCS [Anti-terrorism, Crime and Security] Act.
All those detained have had access to legal advice throughout the detention period and there is no limit on the number of legal visits that detainees may receive. Those detained have immediate right of appeal to the Special Immigration Appeals Commission against the certificate. All but one of the detainees have already exercised that right. The ATCS Act provides for the SIAC regularly to review certificates, and it may overturn them. Detainees also have the right to apply for bail to the commission at any time and several have done so. This is not internment. It is open to the detainees to leave the United Kingdom of Great Britain and Northern Ireland, and two have done so.
Individual detainee appeals will be heard by the SIAC, starting in May. We believe these would have been heard much sooner had it not been for the legal challenge mounted by defendants to the detention powers - powers which the Court of Appeal upheld in October. We are clear that they must proceed as early as possible without any necessity to await the final outcome of the derogation challenge to the House of Lords, if leave is granted.
United Kingdom of Great Britain and Northern Ireland
In 2003, in a reply to a written question in the House of Lords, the UK Minister of State, Home Office, wrote:
Sixteen foreign nationals have so far been detained using powers in Part IV of the Anti-terrorism, Crime and Security (ATCS) Act 2001. Eight were detained in December 2001, one in February 2002, two in April 2002, one in October 2002, one in November 2002, two in January 2003 and one in October 2003. One further individual has been certified under Part IV of the ATCS Act in August 2003 but is detained under other powers.
Of the total detained, two have voluntarily left the United Kingdom of Great Britain and Northern Ireland. The other 14 remain in detention.
The Home Secretary’s decisions to detain these individuals were made on the basis of detailed and compelling evidence. That evidence is being examined by the Special Immigration Appeals Commission as the individuals’ appeals are heard, as provided for under the ATCS Act. The commission is equivalent to the High Court. It has the power to overturn his decisions.
Where terrorism is concerned, our paramount responsibility is to ensure public safety and national security. So long as the public emergency subsists, where a person is suspected of terrorism but cannot currently be removed and for whom a criminal prosecution is not an option, we believe that it is necessary and proportionate to provide for extended detention, pending removal.
United Kingdom of Great Britain and Northern Ireland
In 2010, the UK Ministry of Defence sent a letter on “Iraq Internee Review Procedures” to the Baha Mousa Inquiry, a public inquiry into the circumstances surrounding the death of Baha Mousa, an Iraqi civilian who died in September 2003 whilst detained at a UK detention facility in Basra, Iraq, and the treatment of those detained with him. In this letter, a Senior legal adviser of the Ministry of Defence stated:
The Inquiry made a request on 21 May 2010 (clarified on 24 May 2010) for “2003 documents as whether internment should be reviewed by a UK judge …”
In order to provide a concise explanation of … [its] position, [the] MOD [Ministry of Defence] has drawn together the relevant information derived from the documentation in this letter with some supporting background documentation.
Processes for reviews of internment
In MND(SE) [Multi-National Division (South East [Iraq])] there was a comprehensive process for review of the basis for detention of individuals which developed over time, comprising the Divisional Internment Review Committee, the Joint Detention Committee and Combined Review and Release Board. It may help the Inquiry when considering the issues relating to an independent review body to have an understanding of the review process that was actually in place.
The process for reviews of detentions in theatre was managed by the Divisional Internment Review Committee (DIRC). This was a UK board which met on a monthly basis to review internee cases. …
Following the decision of the Divisional Court in AI Jedda … , in about late 2005 the procedures under the DIRC for the review of detentions were revised to ensure that the decision under the review procedure was taken jointly by the Commander and the panel, rather than by the Commander on the recommendation of the panel. …
JDC and JDRC
Towards the end of 2005 consideration was given to the issue of whether the MNF [Multinational Force] could lawfully hold internees for a period longer than 18 months. Where it was considered that a security internee should be retained in internment for longer than 18 months, section 6(6) of CPA [Coalition Provisional Authority] Memorandum 3 (Revised) provided that an application should be made to the Joint Detention Committee (JDC) for approval for continued internment for an additional period. The JDC was established by CPA Order 99 (section 2(1)), which came into force on the same day as CPA Memorandum No 3 (27 June 2004) but it had never sat. Section 3 of Order 99 provided that the JDC would be responsible for establishing criteria for the detention of individuals, including the basis for release or transfer to Iraqi jurisdiction or custody. CPA Memo 6 contemplated that internees may be held for two months after the expiration of the 18 month period whilst an application to the JDC was made.
On 31 December 2005, the JDC voted to delegate its authority to review applications to members of a Joint Detention Review Committee (JDRC) which was set up at the same time, although ultimate decision-making rested with the JDC.
The JDRC was responsible for conducting the review of applications for the continued detention of security internees detained by MNF-1 for periods that would exceed 18 months. It was composed of –
1) 1 representative from each of the Iraqi ministries of: Interior, Human Rights, and Defence;
2) 1 representative from the Office of the Prime Minister;
3) 2 representatives from the Iraqi Ministry of Justice;
4) 3 officers from the MNF. When reviewing detention of persons detained by UK forces, one of the 3 will be the Senior British Legal Officer (a Colonel), while the other 2 will be of at least Lieutenant Colonel rank (or equivalent).
CRRB [Combined Review and Release Board]
Consideration was given in 2004 to involving the Iraqis in the MND(SE) review process, perhaps by placing vetted Iraqis on the existing DIRC in Basra, or by utilising the existing US/Iraqi Combined Review and Release Board (CRRB) in Baghdad by replacing the US personnel on the Board with their UK counterparts. The Secretary of State considered that it was best to utilise the review processes set up by coalition partners and the Iraqi government rather than create parallel review machinery in the UK. He was also conscious of the fact that the UK would not retain the power to intern long-term and was reluctant to set up a board which could have a relatively short life.
The CRRB was therefore established in 2006 as an additional part of the DIRC process with increased Iraqi involvement. The first CRRB session was on 11 September 2006 and reviews took place every three months. The CRRB process was the same as the review process used by the US, save that whereas their CRRB process had US and Iraqi involvement, for persons interned by UK forces the CRRB was composed of UK and Iraqi members. The Board was composed of six Iraqi representatives from the Iraqi Ministries of Justice, the Interior and Human Rights, and three UK forces officers. Because of its joint Iraqi/Coalition nature, the CRRB was party to the same set of intelligence as the JDRC.
Because it reviewed cases in the absence of the complete intelligence picture, the CRRB’s recommendations were passed to the DIRC. The DIRC, being party to the complete intelligence picture, could reject CRRB recommendations for release where they believed that an imperative threat to security remained. If they were content that no such threat existed they would approve release. This mirrored the US process, in which the CRRB’s recommendations are considered by the Commanding General of MNF-1 and could be rejected. The Iraqis were fully aware that the role of the CRRB was to make recommendations which then receive further consideration and as far as MOD is aware, did not raise any objections to this process.
Proposals for Independent Review Board
Within MOD in 2003 consideration was given to establishing reviews of internment of Iraqi civilians held in Iraq. Hence, in November 2003, Secretary of State agreed to the establishment of an Independent Review Board (IRS) for security internees held by UK forces in Iraq. At that time they were held under the power in Article 78 of the  Fourth Geneva Convention (GCIV) but from the end of occupation on 28 June 2004 they were held pursuant to the UN “all necessary measures” mandate conferred on the MNF by UN SCR [Security Council Resolution] 1546 (and subsequent resolutions).
The MOD considered that the existing arrangements in place (the DIRC) met MOD’s GCIV [1949 Geneva Convention IV] obligations. The aim of establishing the IRS was to go beyond the GCIV requirements and reflect MOD policy on the application of ECHR [the European Convention on Human Rights], whilst noting it was the MOD’s position at that time that ECHR did not apply as a matter of law. It was recognised that efforts should be made to ensure that as much protection was given to detainees as was practicable.
The initial proposal was to establish an IRB based on a modified version of the Special Immigration Appeals Commission (SIAC). Unlike SIAC, the judges would hold hearings in London and internees would not travel to the UK for hearings. This was for personal security and other practical reasons (i.e. the judges were based in the UK). Cases would be reviewed on the paper evidence which the DIRC considered in theatre.
It was originally envisaged (agreed December 2003/January 2004), in line with the SIAC, that the IRS’s role would be a decision-making one; viz. to decide whether or not an individual should continue to be interned. To maintain as much independence as possible, the Department of Constitutional Affairs (DCA) was to “own” the Terms of Reference, house, support and staff the IRS. The Lord Chancellor agreed to this proposal.
During 2004, discussions about this proposal took place between MOD and the DCA as well as with PJHQ and theatre. …
However, these proposals were not finalised or progressed any further because MOD considered itself obliged to put them on hold pending the outcome of legal action in the High Court and Court of Appeal (the AI Skeini and AI Jedda cases) given that they concerned the scope of the ECHR and the right of coalition forces in Iraq to intern. In particular, the case of
AI Jedda raised issues regarding the lawful basis for detentions in lraq.
In summary and most importantly, the Divisional Court in AI Jedda held that the DIRC met MOD’s international obligations under Article 78 GCIV. Although they did not strictly meet the requirements of Article 78, since the decision maker was a single individual rather than an administrative board, non-compliance was more technical than substantial … If the decision had been taken jointly by the Commander and the panel, rather than by the Commander on the recommendation of the panel, the procedure would have complied with Article 78. However, the substantive conditions of Article 78 had been met so the detention was not unlawful.
Further, the court held that Article 5(1) [ECHR] did not apply … (and so there was no breach of the ECHR). Even if it did, the claimant could not succeed in the claim under Article 5(4) [ECHR] … because Mr AI Jedda did have access to a court to challenge his detention.
As mentioned above, following that decision the procedures under the DIRC for the review of detentions were revised in accordance with the conclusions of the court.
Given that the review process had developed since the original proposals in 2004, and following the AI Jedda judgment, MOD was clearer on how the legal framework under which UK forces operated with respect to security detention would be interpreted by the UK courts. A decision was taken not to pursue the concept of an IRB any further. MOD was confident that the existing review procedures met the Department’s legal obligations. …
The House of Lords’ decision in AI Jedda ( UKHL 58 - 12 December 2007) confirmed that of the lower courts on the points mentioned above. However, their Lordships made a number of comments regarding the power of internment. Lord Carswell stated that the power has to be exercised in such a way as to minimise the infringements of the detainee’s rights in particular by adopting and operating to the fullest practicable extent the following safeguards including (1) the compilation of intelligence about such persons which is as accurate and reliable as possible; (2) the regular review of the continuing need to detain each person; and (3) a system whereby that need and the underlying evidence can be checked and challenged by representatives on behalf of the detained persons, so far as is practicable and consistent with the needs of national security and the safety of other persons.
The DIRC review process ensured that the first two safeguards were already in place. MOD considered that the third safeguard would be delivered by virtue of the detainee’s right under Article 5(4) ECHR (to have the lawfulness of detention decided by a court) to bring proceedings in UK courts.
[footnotes in original omitted; emphasis in original]
United Kingdom of Great Britain and Northern Ireland
In 2010, in its closing submissions to the public inquiry into the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him by UK armed forces in Iraq in 2003, the UK Ministry of Defence stated:
10.27 … [Article 78(2) of the 1949 Geneva Convention IV or GC4] sets out the minimum procedural protections for internees. The inquiry will note straight away that this provision does not require that internment appeals or reviews are conducted by a judge. The requirement is for a “competent body” to conduct the review and not a judge. This should not be a cause for surprise in a body of rules regulating belligerent occupations of all descriptions. Consequently, the MOD [Ministry of Defence] does not accept the submissions, if it is made by the detainees, that a judge was required by IHL to review their detentions under Art. 78 GC4. Further, because GC4 is the lex specialis, the MOD does not accept that any inconsistent provision of international human rights law can operate in the legal space of belligerent occupation so as to require internment to be reviewed by a judge. It recognises though that the legal requirement is a separate question to whether, if it has been a practical proposition, it would have been desirable to appoint a judge to conduct such appeals and reviews, but this was considered extensively by MOD in conjunction with Department of Constitutional Affairs at the time. Any such appointment though would have gone beyond the requirements of the applicable law.
10.28 The ICRC commentary to this part of Art. 78 sheds further light on the level of procedural protection required. In particular, it implicitly confirms that there is no requirement for a judge and points to the fact that the requirement for a board has the advantage that no single person will be responsible for the review decision.
The Ministry of Defence also stated:
[D]uring the period of belligerent occupation if and to the extent the ECHR may apply (which is not accepted …), IHL, and in particular the internment provisions of GC4, qualified but did not wholly displace Art. 5 ECHR. During the period of belligerent occupation IHL took precedence because it is the lex specialis
. The opinions of their Lordships in Al Jedda
are of considerable assistance. They reinforce the submission that there is no requirement for a judge (because GC4 expressly permits either a court or a body).
The Ministry of Defence further stated:
Unlike Art. 5 ECHR, Art. 9 ICCPR [1966 International Covenant on Civil and Political Rights] does not provide a closed list of the permitted grounds for depriving a person of liberty. It simply requires that deprivation of liberty must not be arbitrary and must be in accordance with law (both substantive and procedural). Article 43 of the Hague Regulations and Art. 78 GC4 provides a clear legal basis for internment during belligerent occupation. Further, even if internment without trial under Art. 78 GC4 were to be found to be incompatible with Art. 9 ICCPR, or any part thereof, then the former takes precedence during belligerent occupation because it is the lex specialis
. Accordingly, Art. 9 ICCPR does not preclude internment in accordance with Art. 78 GC4.
United States of America
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.
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.
In 1989, in a statement before the Human Rights Committee, Uruguay reported that habeas corpus
definitely continued to apply in emergency situations.
UN Commission on Human Rights
In a resolution adopted in 2005 on technical cooperation and advisory services in Nepal, the UN Commission on Human Rights:
the Government of Nepal to ensure the independence and effectiveness of the judiciary, and therefore urges the Government to safeguard effective judicial remedies, in particular respect of habeas corpus orders, and to comply fully and faithfully with all judicial orders.
UN Human Rights Council
In a resolution adopted in 2007 on arbitrary detention, the UN Human Rights Council encouraged all States:
(d) To respect and promote the right of anyone who is deprived of his/her liberty by arrest or detention to be entitled to bring proceedings before a court, in order that the court may decide without delay on the lawfulness of his/her detention and order his/her release if the detention is not lawful, in accordance with their international obligations;
) To ensure that the right deferred to in subparagraph (d
) above is equally respected in cases of administrative detention, including administrative detentions in relation to public security legislation.
UN Sub-Commission on Human Rights (Special Rapporteur)
In 1996, in a report to the UN Sub-Commission on Human Rights, the Special Rapporteur on States of Emergency stated that the remedy of habeas corpus
“is not derogable at any time or under any circumstances”.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Mucić case in 1998, the ICTY Trial Chamber stated:
As Geneva Convention IV leaves a great deal to the discretion of the detaining party in the matter of the original internment or placing in assigned residence of an individual, the party’s decision that such measures of detention are required must be “reconsidered as soon as possible by an appropriate court or administrative board”.
In its judgment on appeal in 2001, the ICTY Appeals Chamber held:
The involuntary confinement of a civilian where the security of the Detaining Power does not make this absolutely necessary will be unlawful. Further, an initially lawful internment clearly becomes unlawful if the detaining party does not respect the basic procedural rights of the detained persons and does not establish an appropriate court or administrative board as prescribed in Article 43 of Geneva Convention IV.
Extraordinary Chambers in the Courts of Cambodia
In the Kaing case before the ECCC, the accused was charged, both individually and as a superior, with, inter alia, various crimes against humanity and grave breaches of the 1949 Geneva Conventions. In its judgment in 2010, the Trial Chamber considered the prohibition on arbitrary imprisonment, stating:
347. Imprisonment refers to the arbitrary deprivation of an individual’s liberty without due process of law. The customary status of the prohibition of arbitrary imprisonment under international law initially developed from the laws of war and is supported by human rights instruments.
349. Not every minor infringement of liberty forms the material element of imprisonment as a crime against humanity; the deprivation of liberty must be of similar gravity and seriousness as the other crimes enumerated as crimes against humanity in Article 5 of the ECCC Law [Law on the Establishment of the ECCC (2001), as amended in 2004].
350. It must be shown that the perpetrator intended to arbitrarily deprive the individual of liberty, or that he [or she] acted in the reasonable knowledge that his or her actions were likely to cause the arbitrary deprivation of physical liberty.
[footnotes in original omitted]
The Trial Chamber also considered the offence of unlawful confinement, stating:
464. The elements of the offence of unlawful confinement under Article 6 of the ECCC Law are in substance the same as those of imprisonment under Article 5 of the ECCC Law (crimes against humanity).
465. Unlawful confinement of a civilian is expressly prohibited as a grave breach in [the 1949] Geneva Convention IV. … an initially lawful internment becomes unlawful if the detaining party fails to … establish an appropriate court or administrative board as prescribed in Article 43 of Geneva Convention IV.
466. The jurisprudence of the ICTY has established that the requisite mental element for this offence, in common with all grave breaches of the Geneva Conventions, includes both culpable intent and recklessness.
[footnotes in original omitted]
Human Rights Committee
In its General Comment on Article 9 of the 1966 International Covenant on Civil and Political Rights in 1982, the Human Rights Committee held:
If so-called preventive detention is used, for reasons of public security, it must be controlled by these same provisions, i.e. … court control of the detention must be available (para. 4) as well as compensation in the case of a breach (para. 5).
Human Rights Committee
In its General Comment on Article 4 of the 1966 International Covenant on Civil and Political Rights in 2001, the Human Rights Committee held:
In order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party’s decision to derogate from the Covenant.
Human Rights Committee
In 1998, in its concluding observations on Israel, the Human Rights Committee stressed that even where there had been a derogation from the 1966 International Covenant on Civil and Political Rights, a State party to the Covenant could not depart from the requirement of effective judicial review of detention.
Human Rights Committee
In its concluding observations on the combined fourth and fifth periodic reports of Sri Lanka in 2003, the Human Rights Committee stated:
The Committee is concerned that the Prevention of Terrorism Act (PTA) remains in force and that several of its provisions are incompatible with the [1966 International Covenant on Civil and Political Rights] (arts. 4, 9 and 14). The Committee welcomes the decision of the Government, consistent with the Ceasefire Agreement of February 2002, not to apply the provisions of the PTA and to ensure that normal procedures for arrest, detention and investigation prescribed by the Criminal Procedure Code are followed. The Committee is also concerned that the continued existence of the PTA allows arrest without a warrant and permits detention for an initial period of 72 hours without the person being produced before the court (sect. 7), and thereafter for up to 18 months on the basis of an administrative order issued by the Minister of Defence (sect. 9) … [T]he lawfulness of a detention order issued by the Minister of Defense cannot be challenged in court … The Committee is concerned that such provisions, incompatible with the Covenant, still remain legally enforceable, and that it is envisaged that they might also be incorporated into the Prevention of Organized Crimes Bill 2003.
The State party is urged to ensure that all legislation and other measure enacted taken to fight terrorism are compatible with the provisions of the Covenant. The provisions of the Prevention of Terrorism Act designed to fight terrorism should not be incorporated into the draft Prevention of Organized Crime Bill to the extent that they are incompatible with the Covenant
[emphasis in original]
Human Rights Committee
In its concluding observations on the first periodic report of Albania in 2004, the Human Rights Committee, noting with concern Albania’s interpretation of possible derogations from the 1966 International Covenant on Civil and Political Rights during a state of emergency, stated:
… [T]he State party should ensure that, in order to protect non-derogable rights, the right to take proceedings before a court, in order that the court may decide without delay on the lawfulness of a detention, as well as the right of all persons deprived of their liberty be treated with humanity and with respect for the inherent dignity of the human person, must not be reduced by a derogation from Covenant provisions during the state of emergency.
[emphasis in original]
Human Rights Committee
In 2006, in its concluding observations on the report submitted by the United Nations Interim Administration Mission in Kosovo (UNMIK) on the human rights situation in Kosovo since June 1999, the Human Rights Committee stated:
The Committee notes with concern that criminal suspects have been arrested solely under a detention directive of the Commander of KFOR [NATO Kosovo Force] and under executive orders of the Special Representative of the Secretary-General without being brought before a judge promptly and without access to an independent judicial body to determine the lawfulness of their detention (arts. 9 and 14 [of the 1966 International Covenant on Civil and Political Rights]).
UNMIK should revoke the Regulation conferring power on the Special Representative of the Secretary-General to detain and expel individuals, seek the cessation of detentions under Commander of KFOR Detention Directive 42, and ensure that all persons arrested under the discretionary powers of UNMIK police or under a court order are informed of the reasons for their arrest and of any charges against them, brought promptly before a judicial authority, granted access to a lawyer and to proceedings before a court to determine the lawfulness of their detention, and are tried without undue delay
[emphasis in original]
Human Rights Committee
In its concluding observations on the combined second and third periodic reports of the United States in 2006, the Human Rights Committee stated:
The Committee is concerned that, following the Supreme Court ruling in Rasul v. Bush (2004), proceedings before Combatant Status Review Tribunals (CSRTs) and Administrative Review Boards (ARBs), mandated respectively to determine and review the status of detainees, may not offer adequate safeguards of due process, in particular due to: (a) their lack of independence from the executive branch and the army, (b) restrictions on the rights of detainees to have access to all proceedings and evidence, (c) the inevitable difficulty CSRTs and ARBs face in summoning witnesses, and (d) the possibility given to CSRTs and ARBs, under Section 1005 of the 2005 Detainee Treatment Act, to weigh evidence obtained by coercion for its probative value. The Committee is further concerned that detention in other locations, such as Afghanistan and Iraq, is reviewed by mechanisms providing even fewer guarantees. (article 9 [of the 1966 International Covenant on Civil and Political Rights])
The State party should ensure, in accordance with article 9 (4) of the Covenant, that persons detained in Guantánamo Bay are entitled to proceedings before a court to decide, without delay, on the lawfulness of their detention or order their release.
Due process, independence of the reviewing courts from the executive branch and the army, access of detainees to counsel of their choice and to all proceedings and evidence, should be guaranteed in this regard
[emphasis in original]
Human Rights Committee
In numerous cases concerning Uruguay between 1979 and 1981, the Human Rights Committee found a violation of the right to habeas corpus
particularly with regard to a large number of persons who had been imprisoned without court supervision under emergency legislation during the period of military rule.
The Human Rights Committee has also found a violation of Article 9(4) of the 1966 International Covenant on Civil and Political Rights in numerous other cases.
Human Rights Committee
In Alegre v. Peru in 2005, the Human Rights Committee stated:
With regard to the author’s contentions concerning the violation of her right to liberty and security of person, the Committee considers that her arrest and detention incommunicado for seven days and the restrictions on the exercise of the right of habeas corpus constitute violations of article 9 of the [1966 International Covenant on Civil and Political Rights] as a whole.
Human Rights Committee
In Boucherf v. Algeria in 2006, the Human Rights Committee held:
As to the alleged violation of article 9 [of the 1966 International Covenant on Civil and Political Rights], the information before the Committee reveals that Riad Boucherf was removed from his home by State agents. The State party has not addressed the author’s claims that her son’s arrest and detention was arbitrary or illegal, or that he has been unaccounted for since 25 July 1995, other than submitting a general denial to the Committee. Under these circumstances, due regard must be given to the detailed information provided by the author. The Committee recalls that incommunicado detention as such may violate article 9, and again notes the author’s claim that her son has been held incommunicado since 25 July 1995, without any possibility of access to a lawyer, or of challenging the lawfulness of his detention. In the absence of any pertinent clarification on this point from the State party, the Committee concludes that article 9 has been violated.
Human Rights Committee
In Ilombe and Shandwe v. Democratic Republic of the Congo in 2006, the Human Rights Committee held:
In general, the detention of civilians by order of a military court for months on end without possibility of challenge must be characterized as arbitrary detention within the meaning of article 9, paragraph 1, of the [1966 International Covenant on Civil and Political Rights].
Human Rights Committee
In Ilombe and Shandwe v. Democratic Republic of the Congo in 2006, the Human Rights Committee held:
On the alleged violation of article 9, paragraph 4, of the [1966 International Covenant on Civil and Political Rights], the Committee takes note of the authors’ claim that they were deprived of the right to challenge the legality of their detention, because decisions of the Military Court can neither be opposed, nor appealed. In the absence of any information from the State party on this issue, the Committee considers that the facts before it reveal a violation of article 9, paragraph 4, of the Covenant.
Human Rights Committee
In Bazarov v. Uzbekistan in 2006, the Human Rights Committee held:
The authors have claimed that their son was unable to have the decision to place him in pre-trial detention reviewed by a judge or other officer authorized by law to exercise judicial power, because Uzbek law does not provide, for such a possibility. The State party has not refuted this allegation. The Committee observes that the State party’s criminal procedure law provides that decisions for arrest/pre-trial detention are approved by a prosecutor, whose decisions are subject to appeal before a higher prosecutor only, and cannot be challenged in court. It notes that author’s son was arrested on 14 June 1998, placed on pre-trial detention on 18 June 1998, and that there was no subsequent judicial review of the lawfulness of detention until he was brought before a court, on 12 April 1999. The Committee recalls that article 9, paragraph 3, [of the 1966 International Covenant on Civil and Political Rights] is intended to bring the detention of a person charged with a criminal offence under judicial control and recalls that it is inherent to the proper exercise of judicial power, that it be exercised by an authority which is independent, objective and impartial in relation to the issues dealt with. In the circumstances of the present case, the Committee is not satisfied that the public prosecutor may be characterized as having the institutional objectivity and impartiality necessary to be considered an “officer authorized to exercise judicial power” within the meaning of article 9, paragraph 3. The Committee therefore concludes that there has been a violation of this provision.
Human Rights Committee
In Abbassi v. Algeria in 2007, the Human Rights Committee stated:
The Committee notes the author’s allegations that for the duration of his house arrest the author’s father was denied access to a defence lawyer, and that he had no opportunity to challenge the lawfulness of his detention. The State party did not respond to those allegations. The Committee recalls that in accordance with article 9, paragraph 4 [of the 1966 International Covenant on Civil and Political Rights], judicial review of the lawfulness of detention must provide for the possibility of ordering the release of the detainee if his or her detention is declared incompatible with the provisions of the Covenant, in particular those of article 9, paragraph 1. In the case in question, the author’s father was under house arrest for almost six years without any specific grounds relating to the case file, and without the possibility of judicial review concerning the substantive issue of whether his detention was compatible with the Covenant. Accordingly, and in the absence of sufficient explanations by the State party, the Committee concludes that there is a violation of article 9, paragraph 4, of the Covenant.
Human Rights Committee
In Kimouche v. Algeria in 2007, the Human Rights Committee held:
As to the alleged violation of article 9 [of the 1966 International Covenant on Civil and Political Rights], the information available reveals that the authors’ son was removed from his home by agents of the State … The Committee recalls that detention incommunicado as such may violate article 9 and notes the authors’ claim that their son was arrested and has been held incommunicado since 16 May 1996 without any possibility of access to a lawyer or of challenging the lawfulness of his detention. In the absence of adequate explanations on this point from the State party, the Committee concludes that article 9 has been violated.
Human Rights Committee
In Grioua v. Algeria
in 2007, the Human Rights Committee held:
As to the alleged violation of article 9 [of the 1966 International Covenant on Civil and Political Rights], the information before the Committee reveals that the author’s son was removed from his home by agents of the State. The State party has not addressed the author’s claims that her son’s arrest and detention were arbitrary or illegal, or that he has not been seen since 16 May 1996. Under these circumstances, due weight must be given to the information provided by the author. The Committee recalls that detention incommunicado as such may violate article 9, and notes the author’s claim that her son was arrested and has been held incommunicado since 16 May 1996, without any possibility of access to a lawyer, or of challenging the lawfulness of his detention. In the absence of adequate explanations on this point from the State party, the Committee concludes that article 9 has been violated.
Human Rights Committee
In Benhadj v. Algeria in 2007, the Human Rights Committee stated:
The Committee takes note of the author’s allegation that, during several years of incommunicado detention, Ali Benhadj was denied access to counsel and was unable to challenge the lawfulness of his detention. The State party has not replied to these allegations. The Committee recalls that, in accordance with article 9, paragraph 4 [of the 1966 International Covenant on Civil and Political Rights], judicial review of the lawfulness of detention must provide for the possibility of ordering the release of a detainee if his or her detention is declared incompatible with the provisions of the Covenant, in particular those of article 9, paragraph 1. In the present case, Ali Benhadj was detained in several prisons and held in secret places of detention three times for over four years, without the possibility of obtaining a judicial review of the compatibility of his detention with the Covenant. Consequently, and in the absence of sufficient explanations from the State party, the Committee concludes that there has been a violation of article 9, paragraph 4, of the Covenant.
Human Rights Committee
In Titiahonjo v. Cameroon in 2007, the Human Rights Committee held:
The author claims violations of article 9, paragraphs 2, 3 and 4 [of the 1966 International Covenant on Civil and Political Rights]. Nothing suggest[s] that Mr. Titiahonjo was ever informed of the reasons for his arrest, that he was ever brought before a judge or judicial officer, or that he ever was afforded the opportunity to challenge the lawfulness of his arrest or detention. Again, in the absence of relevant State party information on these claims, the Committee considers that Mr. Titiahonjo’s detention between 21 May and 14 September 2000 amounted to a violation of article 9, paragraphs 2, 3 and 4, of the Covenant.
African Commission for Human and Peoples’ Rights
In 1996, in a communication alleging the expulsion from Zambia of over 500 West Africans after they had been administratively detained, the African Commission for Human and Peoples’ Rights referred to its decision finding the case admissible as evidence that it had already established that none of the deportees had the opportunity to seize the Zambian courts to challenge their detention or deportation, which was a violation of Article 7 of the 1981 African Charter on Human and Peoples’ Rights as well as of national law.
European Court of Human Rights
In a number of judgments, the European Court of Human Rights held that the court charged with making the decision as to the legality of the detention must function in accordance with procedural guarantees,
such as an oral hearing,
and time and facilities to prepare application.
The European Court of Human Rights has specified that the tribunal making the determination as to the legality of the detention must have the power to release the person.
The Court has specified, however, that due consideration must be given to the diligence of the national authorities and any delays brought about by the conduct of the detained person, as well as other factors responsible for delays that might be beyond the power of the State organs.
Inter-American Court of Human Rights
In its advisory opinion in the Habeas Corpus case in 1987, the Inter-American Court of Human Rights stated:
In order for habeas corpus to achieve its purpose, which is to obtain a judicial determination of the lawfulness of a detention, it is necessary that the detained person be brought before a competent judge or tribunal with jurisdiction over him. Here habeas corpus performs a vital role in ensuring that a person’s life and physical integrity are respected, in preventing his disappearance or the keeping of his whereabouts secret and in protecting him against torture or other cruel, inhumane, or degrading punishment or treatment.
The Court concluded:
Writs of habeas corpus and of “amparo” are among those judicial remedies that are essential for the protection of various rights whose derogation is prohibited by Article 27(2) [of the 1969 American Convention on Human Rights] and that serve, moreover, to preserve legality in a democratic society.
Inter-American Court of Human Rights
In its advisory opinion in the Judicial Guarantees case in 1987, the Inter-American Court of Human Rights interpreted the scope of the prohibition on the suspension of judicial guarantees essential for the protection of non-derogable rights. The Court found:
The “essential” judicial guarantees which are not subject to derogation, according to Article 27(2) [of the 1969 American Convention on Human Rights], include habeas corpus (Art. 7(6)), amparo, and any other effective remedy before judges or competent tribunals (Art. 25(1)), which is designed to guarantee the respect of the rights and freedoms whose suspension is not authorized by the [1969 American Convention on Human Rights].
Inter-American Court of Human Rights
In its judgment in the Neira Alegría and Others case
in 1995, the Inter-American Court of Human Rights found that the principles it had established in the two advisory opinions on habeas corpus
and human rights during states of emergency applied equally in a case where the control and jurisdiction over a prison had been delegated to the armed forces as the result of a riot. The Court found that there had been a consequent violation of the right to habeas corpus
Turku Declaration of Minimum Humanitarian Standards
The Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights of Åbo Akademi University in Turku/Åbo, Finland in 1990, provides:
The right to an effective remedy, including habeas corpus, shall be guaranteed as a means to determine the whereabouts or the state of health of persons deprived of their liberty and for identifying the authority ordering or carrying out the deprivation of liberty. Everyone who is deprived of his or her liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of the detention shall be decided speedily by a court and his or her release ordered if the detention is not lawful.
The Declaration also provides:
If it is considered necessary for imperative reasons of security to subject any person to assigned residence, internment or administrative detention, such decisions shall be subject to a regular procedure prescribed by law affording all the judicial guarantees which are recognized as indispensable by the international community, including the right of appeal or to a periodical review.