As part of the conflict with the Taliban and Al Qaeda, the United States has captured and detained numerous persons believed to have been part of or associated with enemy forces. Over the years, federal courts have considered a multitude of petitions by or on behalf of suspected belligerents challenging aspects of U.S. detention policy. The Supreme Court has issued definitive rulings concerning several legal issues raised in the conflict with Al Qaeda and the Taliban, including executive authority under the 2001 Authorization for Use of Military Force ("AUMF," P.L. In December 2011, Congress passed the National Defense Authorization Act for FY2012 ("2012 NDAA," P.L. 112-81 ), which contains a provision largely intended to codify the present understanding of the detention authority conferred by the AUMF, as interpreted and applied by the Executive and the U.S. Court of Appeals for the District of Columbia Circuit (D.C. In any event, the act does not address many of the legal issues involving wartime detention which, while occasioning significant political debate, have not been squarely resolved by the Supreme Court. These issues include the full scope of the Executive's detention authority, including the circumstances in which U.S. citizens may be detained as enemy belligerents; the degree to which noncitizens held at Guantanamo and other locations outside the United States are entitled to protections under the Constitution; the authority of federal habeas courts to compel the release into the United States of detainees determined to be unlawfully held if the Executive cannot effectuate their release to another country; and the ability of detainees to receive advance notice and challenge their proposed transfer to a foreign country. This report briefly summarizes major judicial opinions concerning suspected enemy belligerents detained in the conflict with Al Qaeda and the Taliban. It discusses all Supreme Court decisions concerning enemy combatants. It also addresses notable appeals court opinions addressing issues of ongoing relevance to U.S. detention policy. The report also discusses a few notable decisions by federal district courts, including criminal cases involving persons who were either involved in the 9/11 attacks or were captured abroad by U.S. forces or allies during operations against Al Qaeda and the Taliban. Many of the rulings discussed in this report are discussed in greater detail in other CRS products, including CRS Report RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court , by [author name scrubbed] and [author name scrubbed]; CRS Report RL34536, Boumediene v. Bush: Guantanamo Detainees' Right to Habeas Corpus , by [author name scrubbed]; CRS Report RS21884, The Supreme Court 2003 Term: Summary and Analysis of Opinions Related to Detainees in the War on Terrorism , by [author name scrubbed]; and CRS Report R42337, Detention of U.S. Persons as Enemy Belligerents , by [author name scrubbed]. Since 2009, the appellate court has issued rulings concluding, among other things, that
the Executive may lawfully detain persons who are "part of" Al Qaeda, the Taliban, and affiliated groups, and possibly also persons who provide a sufficient degree of support to such entities in their hostilities against the United States and its allies ( Al-Bihani v. Obama ); a functional approach is appropriate when assessing whether a person is "part of" Al Qaeda, meaning that judges should consider the significance of a person's activities in relation to the organization, rather than requiring formal proof of membership, such as evidence the petitioner received orders from the organization's hierarchy ( Awad v. Obama , Bensayah v. Obama , Salahi v. Obama ); the government may satisfy its evidentiary burden in support of a person's detention when its factual claims are supported by a preponderance of evidence ( Al-Bihani v. Obama , Al Odah v. United States ), but a lower standard might be constitutionally permissible ( Al-Adahi v. Obama, Almerfedi v. Obama ); it is proper for a habeas court to assess the cumulative weight and effect of proffered evidence according to a "conditional probability analysis" when determining whether the government has demonstrated factual grounds for detaining a habeas petitioner ( Al-Adahi v. Obama , Salahi v. Obama ); consideration of hearsay evidence in habeas cases is not determined by the Federal Rules of Evidence ( Al Odah v. United States , Al-Madhwani v. Obama ); official government records, including government intelligence reports, are entitled to a presumption of regularity in Guantanamo habeas litigation ( Latif v. Obama ); the writ of habeas affords Guantanamo detainees with a limited right to challenge their proposed transfer to the custody of a foreign government ( Kiyemba II ) as well as matters related to their conditions of confinement ( Aamer v. Obama , Hatim v. Obama ); habeas courts lack authority, absent an authorizing statute, to compel the Executive to release non-citizen detainees into the United States, even if such persons have been determined by the court to be unlawfully detained ( Kiyemba I and III ); it is unlikely that noncitizens who have been transferred to foreign custody may seek judicial review of their designation as enemy combatants by the U.S. government ( Gul v. Obama ); and the constitutional writ of habeas does not presently extend to noncitizen detainees held at U.S.-operated facilities in Afghanistan ( Maqaleh v. Gates ). In the D.C. Circuit.
As part of the conflict with Al Qaeda and the Taliban, the United States has captured and detained numerous persons believed to have been part of or associated with enemy forces. Over the years, federal courts have considered a multitude of petitions by or on behalf of suspected belligerents challenging aspects of U.S. detention policy. Although the Supreme Court has issued definitive rulings concerning several legal issues raised in the conflict with Al Qaeda and the Taliban, many others remain unresolved, with some the subject of ongoing litigation.
This report discusses major judicial opinions concerning suspected enemy belligerents detained in the conflict with Al Qaeda and the Taliban. The report addresses all Supreme Court decisions concerning enemy combatants. It also discusses notable circuit court opinions addressing issues of ongoing relevance. In particular, it summarizes notable decisions which have (1) addressed whether the Executive may lawfully detain only persons who are "part of" Al Qaeda, the Taliban, and affiliated groups, or also those who provide support to such entities in their hostilities against the United States and its allies; (2) adopted a functional approach for assessing whether a person is "part of" Al Qaeda; (3) decided that a preponderance of evidence standard is appropriate for detainee habeas cases, but suggested that a lower standard might be constitutionally permissible, and instructed courts to assess the cumulative weight of evidence rather than each piece of evidence in isolation; (4) determined that Guantanamo detainees have a limited right to challenge their proposed transfer to foreign custody, but denied courts the authority to order detainees released into the United States; (5) held that the constitutional writ of habeas does not extend to noncitizen detainees held at U.S.-operated facilities in Afghanistan; and (6) determined that Guantanamo detainees may challenge conditions of their detention. Finally, the report discusses a few criminal cases involving persons who were either involved in the 9/11 attacks or were captured abroad by U.S. forces or allies during operations against Al Qaeda, the Taliban, and associated entities, as well as reviews of military commission cases in federal appellate courts.
For over a decade, the primary legal authority governing the detention of enemy belligerents in the conflict with Al Qaeda was the 2001 Authorization for Use of Military Force ("AUMF," P.L. 107-40). In December 2011, Congress passed the National Defense Authorization Act for FY2012 ("2012 NDAA," P.L. 112-81), which contains a provision that is largely intended to codify the current understanding of the detention authority conferred by the AUMF, as has been interpreted and applied by the Executive and the D.C. Circuit. In any event, the act does not address many of the legal issues involving wartime detention that have not been squarely resolved by the Supreme Court. Among other things, these unresolved issues include the precise scope of the Executive's wartime detention authority, including the circumstances in which U.S. citizens may be detained; the degree to which noncitizens (or in one case, U.S. citizens) held abroad are entitled to protections under the Constitution; the authority of federal habeas courts to compel the release into the United States of detainees determined to be unlawfully held; and the ability of detainees to receive advance notice and to challenge their proposed transfer to foreign custody.
Several rulings addressed in this report are discussed in greater detail in other CRS products, including CRS Report RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, by [author name scrubbed] and [author name scrubbed]; CRS Report RL34536, Boumediene v. Bush: Guantanamo Detainees' Right to Habeas Corpus, by [author name scrubbed]; CRS Report RS21884, The Supreme Court 2003 Term: Summary and Analysis of Opinions Related to Detainees in the War on Terrorism, by [author name scrubbed]; and CRS Report R42337, Detention of U.S. Persons as Enemy Belligerents, by [author name scrubbed].