§ 2241, provided federal courts with jurisdiction to consider habeas corpus petitions by or on behalf of persons detained at Guantanamo. Second, the U.S. District Court for the District of Columbia began to hear the dozens of habeas cases filed on behalf of the detainees, with different judges reaching conflicting conclusions as to whether the detainees had any enforceable rights available other than the bare right to petition for habeas . The DTA also eliminated the federal courts' statutory jurisdiction over habeas claims by aliens challenging their detention at Guantanamo Bay, but provided for limited appeals of status determinations made pursuant to the DOD procedures for CSRTs, along with final decisions by military commissions. However, in the 2006 case of Hamdan v. Rumsfeld , the Supreme Court interpreted the provision eliminating federal habeas jurisdiction as being inapplicable to cases that were pending at the time the DTA was enacted, permitting it to review the validity of military commissions established pursuant to President Bush's 2001 military order. Circuit panel ruling in the case of Kiyemba v. Obama , in which the appellate court held that federal habeas courts lack the authority to order the release of Guantanamo detainees into the United States, even when those detainees are found to be unlawfully held and the government is unable to effectuate their release to a foreign country. In March 2009, the Obama Administration announced a new definitional standard for the government's authority to detain terrorist suspects, which no longer employs the phrase "enemy combatant" to refer to perso ns who may be properly detained, although the new standard is largely similar in scope to the "enemy combatant" standard used earlier. The Obama Administration standard would permit the detention of members of the Taliban, Al Qaeda, and associated forces, along with persons who provide "substantial support" (rather than merely "support") to such groups, regardless of whether these individuals were captured away from the battlefield in Afghanistan. Circuit panel held in the case of Al-Bihani v. Obama that support for or membership in an AUMF-targeted organization may be independently sufficient to justify military detention, without proof that the detainee committed any hostile act. This report provides an overview of the early judicial developments and the establishment of CSRT procedures; summarizes selected court cases related to the detentions and the use of military commissions; and discusses the Detainee Treatment Act, as amended by the Military Commissions Act of 2006 and the Military Commissions Act of 2009, analyzing its effects on detainee-related litigation in federal court. Pre-Boumediene v. Bush Court Challenges to the Detention Policy

While the Supreme Court clarified in Rasul (and later Boumediene , discussed infra ) that detainees currently held at Guantanamo have recourse to federal courts to challenge their detention, the extent to which they may enforce any rights they may have under the Geneva Conventions and other law continues to remain unclear. The provision does not create a cause of action for detainees to ask a court for relief based on inconsistent treatment, and it divests the courts of jurisdiction to hear challenges by those detained at Guantanamo Bay based on their treatment or living conditions. In Boumediene v. Bush , discussed infra , the Supreme Court held that MCA § 7 acted as an unconstitutional suspension of the writ of habeas corpus, and authorized Guantanamo detainees to petition federal district courts for habeas review of CSRT determinations of their enemy combatant status. This definitional standard is largely similar to that used by the Bush Administration to detain terrorist suspects as "enemy combatants." The scope of the Executive's detention authority under the AUMF and the law of war has been subject to conflicting rulings in the D.C. This might have left some detainees without effective means to pursue a DTA challenge. In January 2010, a D.C. Judge Bates held that the circumstances surrounding the detention of the petitioners in Al Maqaleh were "virtually identical to the detainees in Boumediene – they are [non-U.S.] citizens who were ... apprehended in foreign lands far from the United States and brought to yet another country for detention" Applying the factors discussed in Boumediene as being relevant to a determination of the extraterritorial scope of the writ of habeas corpus , Judge Bates concluded that the writ extended to three of the four petitioners at issue in Al Maqaleh , who were not Afghan citizens.
After the Supreme Court held that federal courts have jurisdiction under the federal habeas corpus statute to hear legal challenges on behalf of persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the conflict against Al Qaeda and associated groups (Rasul v. Bush), the Pentagon established administrative hearings, called "Combatant Status Review Tribunals" (CSRTs), to allow the detainees to contest their status as enemy combatants, and informed them of their right to pursue habeas relief in federal court. Lawyers subsequently filed dozens of petitions on behalf of the detainees in the District Court for the District of Columbia, where district court judges reached inconsistent conclusions as to whether the detainees have any enforceable rights to challenge their treatment and detention.
Congress subsequently passed the Detainee Treatment Act of 2005 (DTA) to divest the courts of jurisdiction to hear some detainees' challenges by eliminating the federal courts' statutory jurisdiction over habeas claims (as well as other causes of action) by aliens detained at Guantanamo. The DTA provided for limited appeals of CSRT determinations or final decisions of military commissions. After the Supreme Court rejected the view that the DTA left it without jurisdiction to review a habeas challenge to the validity of military commissions in the case of Hamdan v. Rumsfeld, Congress enacted the Military Commissions Act of 2006 (MCA) (P.L. 109-366) to authorize the President to convene military commissions and to amend the DTA to further reduce detainees' access to federal courts, including in cases already pending.
In 2008, the Supreme Court ruled in Boumediene v. Bush that aliens detained at Guantanamo have the constitutional privilege of habeas corpus, and the judicial review mechanism provided by the MCA and DTA by which detainees could challenge the legality of their detention did not provide a constitutionally adequate habeas substitute. The immediate impact of the Boumediene decision is that detainees at Guantanamo may petition a federal district court for habeas review of the legality and possibly the circumstances of their detention, perhaps including challenges to the jurisdiction of military commissions. Several issues remain unresolved and are the subject of ongoing litigation, including the constitutional protections owed to detainees held at Guantanamo and other locations outside the United States; the substantive scope of military detention authority; the procedural standards used to assess the adequacy of evidence supporting a detainee's designation as an enemy belligerent; and the authority of federal habeas courts to compel the release of detainees determined to be unlawfully held into the United States if the Executive cannot effectuate their release to another country. The Supreme Court was expected to consider some of these issues in the case of Kiyemba v. Obama, but changed circumstances surrounding some of the petitioners resulted in the Court remanding the case back to the D.C. Circuit for further consideration.
In March 2009, the Obama Administration announced a new definitional standard for the government's authority to detain terrorist suspects, which is largely similar in scope to the "enemy combatant" standard used by the Bush Administration to detain terrorist suspects. The standard would permit the detention of members of the Taliban, Al Qaeda, and associated forces, along with persons who provide "substantial support" to such groups, regardless of whether such persons were captured away from the battlefield in Afghanistan. Courts that have considered the Executive's authority to detain under the AUMF and law of war have reached differing conclusions as to the scope of this detention authority. In January 2010, a D.C. Circuit panel held that support for or membership in an AUMF-targeted organization may constitute a sufficient ground to justify military detention.