	Background

The U.S. Supreme Court decided at the end of its 2003-2004 term that U.S. courts have jurisdiction to hear challenges on behalf the approximately 550 persons who were detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the war against terrorism. Circuit, which had accepted the Administration's argument that no U.S. court has jurisdiction to hear petitions for habeas corpus by or on behalf of the detainees because they are aliens and are detained outside the sovereign territory of the United States. Congress approved the Detainee Treatment Act of 2005 (DTA, or Graham-Levin Amendment) to establish standards for interrogation and to deny detainees access to federal courts to file habeas petitions but allow limited appeals of status determinations and final decisions of military commissions in the D.C. The Bush Administration deems all of the detainees to be "unlawful combatants," who may, according to Administration officials, be held indefinitely without trial or even despite their possible acquittal by a military tribunal. The 9/11 Commission, apparently finding the international discord over the treatment and status of the detainees to be harmful to the U.S. effort to thwart terrorism, recommended the development of a common coalition approach toward the detention and humane treatment of captured terrorists. Critics' Views

Some allied countries and human rights organizations criticized the President's decision as contrary to international law, arguing it relied on an inaccurate interpretation of the Geneva Convention for the Treatment of Prisoners of War (GPW). The U.N. High Commissioner on Human Rights (UNHCR) and some human rights organizations argue that all combatants captured on the battlefield are entitled to be treated as POWs until an independent tribunal has determined otherwise. The President's decision to apply the Geneva Conventions to the Taliban but deny their application to Al Qaeda as a non-party may be an implicit recognition that the armed conflict is an international one, at least with respect to the Taliban. Prisoners of War

The privileged status of prisoners of war grew from the concept of military necessity. Treatment of Detainees at Guantánamo

The Department of Defense defends its treatment of the detainees at the Guantánamo Naval Station as fully complying with the principles of the Geneva Convention, and view the treatment as compliant with Common Article 3 as well as standards set by Congress in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006. Under the Detainee Treatment Act and the Military Commissions Act, the detainees have limited recourse to federal courts to challenge their status as "enemy combatants," but they are prohibited from invoking their rights under the Geneva Conventions in connection with such a challenge. 108th Congress

Several measures were introduced during the 108 th Congress to address the detention of persons detained in connection with the war on terrorism. In addition, the National Defense Authorization Act of 2006, P.L. H.R.
In June 2004, the U.S. Supreme Court ruled in Rasul v. Bush that U.S. courts have jurisdiction to hear challenges on behalf of persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the war against terrorism. The Court overturned a ruling that no U.S. court has jurisdiction to hear petitions for habeas corpus on behalf of the detainees because they are aliens detained abroad, but left questions involving prisoners' rights and status unanswered. The 9/11 Commission recommended a common coalition approach to such detention. Congress enacted the Detainee Treatment Act of 2005 (DTA), P.L. 109-148, to establish standards for interrogation and to deny detainees access to federal courts to file habeas petitions but allow limited appeals of status determinations and final decisions of military commissions. Congress approved the Military Commissions Act of 2006 (MCA), P.L. 109-366, to authorize military commissions for the prosecution of detainees for war crimes.
The Bush Administration earlier deemed all of the detainees to be "unlawful combatants," who may, according to Administration officials, be held indefinitely without trial or even if they are acquitted by a military tribunal. Fifteen of the detainees were designated as subject to the President's Military Order of November 13, 2001, making them eligible for trial by military commission. In answer to the Rasul decision, the Pentagon instituted Combatant Status Review Tribunals to provide a forum for detainees to challenge their status as "enemy combatants." The Pentagon had earlier announced a plan for annual reviews to determine whether detainees may be released without endangering national security.
The President's decision to deny the detainees prisoner-of-war (POW) status remains a point of contention, in particular with respect to members of the Taliban, with some arguing that it is based on an inaccurate interpretation of the Geneva Convention for the Treatment of Prisoners of War (GPW), which they assert requires that all combatants captured on the battlefield are entitled to be treated as POWs until an independent tribunal has determined otherwise. The publication of executive branch memoranda documenting the internal debate about the status of prisoners evoked additional criticism of the Bush Administration's legal position. Finally, the Supreme Court's decision in Hamdan v. Rumsfeld determined that persons captured in Afghanistan in connection with the "Global War on Terrorism" are entitled at least to the minimum set of protections accorded by Common Article 3 of the 1949 Geneva Conventions.
This report provides an overview of the law of war and the historical treatment of wartime detainees, in particular the U.S. practice; describes how the detainees' status might affect their rights and treatment; and summarizes activity of the 108th and 109th Congresses related to detention in connection with the war against terrorism. The report also summarizes legislative proposals in the 110th Congress, including H.R. 1 and H.R. 267.