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Enemy Combatants


Our Nation’s war on terror continues to raise difficult legal and political issues for America. We live in a time of great uncertainty, a time when we define ourselves, both here and abroad, by our actions and our policies. The stakes are high, making it essential that we conduct ourselves in ways that uphold our constitutional principles and affirm our commitment to the rule of law.

The Constitution must guide us in our efforts to combat terrorism. Our system of separated powers and checks and balances provides us with the tools to preserve essential liberties and formulate sound policies. To effectuate this, the executive and legislative branches need to work together with common purpose while respecting their separate roles and guarding against abuses of power by the other branch. Likewise, our national security initiatives need to preserve the role of our federal judiciary to resolve disputes between the branches, rule on constitutional questions and protect individual liberties.

Since the 2001 terrorist attacks, the ABA has adopted policies on many of the issues that have come into focus as the justice system and our lawmakers have adopted new strategies to meet changing circumstances and new threats. The Association’s policy positions are predicated on respect and support for our constitutional system of separated powers and reflect a commitment to ensuring that our government achieves the proper balance in protecting both the Nation’s security and our core constitutional values.

Obama Administration Policy on Guantánamo

On January 22, 2009, President Barack Obama immediately set in motion plans to reverse policies and actions of Bush Administration regarding the detention, treatment and prosecution of terrorist suspects who were captured after the terrorist attacks of September 11, 2001. When President Obama took office, approximately 200 terrorist suspects were being held at Guantánamo Bay, some of whom had been there for as long as 6 years, and most for at least 4 years. Many of them were declared enemy combatants and approximately 20 were officially charged and awaiting military commission trials. In Executive Order 13492, following through on a campaign pledge, President Obama directed that the Guantánamo Bay military prison be closed "as soon as practicable, and no later than 1 year from the date of this order. The Order, among other things, directed a review, coordinated by the Attorney General, of the status of Guantánamo detainees to determine whether it was possible to transfer or release them, consistent with national security and the foreign interests of the United States. On January 22, 2010, the Guantánamo Review Task Force concluded that of the 196 detainees at Guantánamo, about 35 should be prosecuted in federal or military courts, nearly 50 should be detained without trial, and about 110 could be transferred to other countries.

The President asked for a separate review of the status of the detainee Ali Saleh Kahlah al-Marri, who is currently held at the Naval Brig in Charleston, South Carolina, to assure that his case receives the same kind of legal and factual review that is being undertaken at Guantánamo.

President Obama’s final action on January 22, in the form of Executive Order 13491 revoked President Bush’s July 2007 Executive Order 13440 that interpreted Common Article 3 of the Geneva Conventions. Executive Order 13491 requires that all interrogations of detainees in armed conflict, by any government agency, including the Central Intelligence Agency, follow the Army Field Manual interrogation guidelines.

It also ordered the CIA to close all existing detention facilities and prohibits it from operating detention facilities in the future. Finally, the Order created a Special Interagency Task Force on Interrogation and Transfer Policies to conduct a review of the Army Field Manual interrogation guidelines to determine whether different or additional guidance examine U.S. policies with regard to rendition. The Task Force, in its August 2009 report, concluded that the Army Field Manual provides appropriate guidance on interrogation and recommended the creation of a specialized interrogation group (High-Value Detainee Interrogation Group) to improve the United States’ ability to interrogate the most dangerous terrorists and recommend best practices. With regard to transfers, the Task Force concluded that the U.S. may rely on assurances from receiving countries and made several recommendations to improve the procedures for obtaining and evaluating these assurances, as well as for monitoring individuals’ treatment after transfer.

In response to these Executive Orders, in February 2009, the ABA adopted policy regarding the treatment and disposition of detainees at Guantánamo prior to its closure. The policy specifies that whenever possible, all detainees who have been or are expected to be charged with violations of criminal law should be prosecuted in an Article III federal court unless the Attorney General certifies, in cases involving recognized war crimes, that prosecution cannot take place before such courts and can be held in other regularly constituted courts (such as a military tribunal) in a manner that comports with fundamental notions of due process, traditional principles of the law of war, the Geneva conventions and the uniform Code of Military Justice. All detainees who are determined to have been improperly classified as or are no longer considered to be enemy combatants should be promptly released, and those remaining individuals who are detained as enemy combatants should be granted prompt habeas corpus hearings with full due process rights and provided access to counsel and the right to confront the evidence against them, including potential exculpatory evidence within the government’s possession.

In November 2009, Attorney General Eric Holder announced that Khalid Shaikh Mohammed, the self-described mastermind of the September 11 attacks, and four other men would be tried in an Article III court in lower Manhattan close to the site of the terrorist attack. He also made public an administration protocol for determining venue for prosecution of detainees at Guantánamo was this announcement set off a maelstrom of criticism. NYC Mayor Bloomberg - soon joined many New Yorkers - complained of costs and disruption. Republicans in the House and Senate immediately criticized the decision and said that they would try to block financing for civilian criminal trials, seeking to force the administration to prosecute them for war crimes in trials before a military commission.

Congressional Action

A. Military Commissions Act of 2009. Title XVIII of the National Defense Authorization Act of 2010 (the NDAA), signed into law in October 2009, replaced the Military Commissions Act of 2006 with the Military Commissions Act of 2009 (MCA 2009). The ABA offered its views to Congress during deliberations over proposed changes to the MCA. In a July 20, 2009 letter on the issue, the ABA noted that despite some improvements to the MCA the language within the bill failed to address a number of significant concerns, including those related to the use of coerced evidence, the admission of hearsay evidence, and the resource constraints under which defense counsel must The MCA 2009 excludes statements obtained by torture or cruel, inhuman, or degrading treatment and eliminates the distinction between statements taken before and after the Detainee Treatment Act of 2005. In determining whether other statements by the accused may be admitted, the MCA 2009 introduces a voluntariness standard that requires the military judge to consider the totality of the circumstances. Hearsay evidence under the MCA 2009 is still admissible. Although language addressing defense counsel resources was not included in the MCA 2009, the conferees state in their final report and joint explanatory statement that they expect the Secretary of Defense "to give appropriate consideration to the American Bar Association s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (February 2003) and other comparable guidelines." The NDAA also requires videotaping (or electronic recording) of interrogations. The Department of Defense released the new Manual for Military Commissions on April 27, 2010.

The concept of our military commissions "which by law are only for defendants who are not citizens of the United States" remains widely disparaged around the world as a second-class justice system. Some allied countries have refused to provide crucial witnesses or evidence for use in the tribunals.

To date, there have been two military commission trials under the new MCA. The first trial before a military commission under the Obama administration, involved Omar Khadr, a Canadian, and last Western citizen held at Guantánamo, who was captured at age 15 and accused of throwing a grenade that killed an American soldier during a firefight in Afghanistan in 2002.

Now 24, Omar Khadr pled guilty on October 25 to five charges, including the murder of a U.S. Special Forces medic in Afghanistan. Under the plea deal, he will serve a reduced sentence, much of it in his home country.

The second and only other military commission trial under the Obama administration involved Ibrahim al Qosi, reportedly served as a cook and driver for Osama bin Laden as well as on an al-Qaida mortar crew in Afghanistan. Al Qosi was sent to Guantánamo Bay, Cuba, in January 2002 and has been in detention for nearly nine years. Al Qosi was first charged before the military commissions in 2004, but the Supreme Court struck down those commissions in 2006. In November 2009, the government requested that they be allowed to amend the charges to conform with the new jurisdictional requirements of MCA of 2009, enacted on October 29, 2009. On July 7, 2010, Al Qosi entered a guilty plea under a plea bargain deal as part of a pre-trial agreement.

Last year, the Obama Administration also announced its intention to prosecute in a military commission Abd al-Rahim al-Nashiri , the alleged coordinator of the October 2000 suicide attack on the USS Cole in Yemen, That case, however, has stalled and no charges have been filed to date. Al-Nashiri was captured in the United Arab Emirates in November 2002, and immediately placed in CIA custody. He was among three detainees held by the agency who was water-boarded, and a report by the CIA's inspector general found that al-Nashiri was threatened with a gun and a power drill. Held at Camp 7 at Guantánamo Bay since September 2006, he has never appeared in court.

B. Closure of Guantánamo and Disposition of Remaining Detainees. President Obama s attempts to close Guantánamo have met with stiff opposition in Congress. His announced plans to purchase the Thompson Correctional Facility, transfer non-combatant detainees to countries overseas, and hold civilian trials for certain enemy combatants have been thwarted by congressional members who have successfully blocked or impeded funding for such programs.

H.R. 5136 and S. 3280, national defense authorization bills for FY 2011 currently under consideration, also have multiple provisions that would make it difficult for Obama to close Guantánamo. They limit or prohibit funds for the transfer or release of detainees within the U.S.; limit or prohibit the transfer of detainees to countries where al Qaeda is active; and prohibit the use of funds to modify facilities within the U.S. to house Guantánamo detainees.

One provision in the House bill deserves special mention. Section 1037 of H.R. 5136 would require the Inspector General (IG) to conduct a 90-day investigation of lawyers who represented Guantánamo detainees for whom there is a reasonable suspicion that they have engaged in any conduct or practice that interferes with the operations at Guantánamo, violates any applicable Department of Defense Policy, violates any law within the Inspector General s exclusive jurisdiction, or generates any "material risk to a member of the U.S. Armed Forces." During floor debate, the language was amended to authorize the IG to investigate any conduct or practice that violates any law of the United States rather than just laws within the IG s exclusive investigative jurisdiction. There is no similar provision in the Senate bill and no expectation that one will be added during floor debate, which may occur during the lame-duck session. The ABA opposed this provision.

C. Habeas Corpus Review. By the end of August 2010, habeas corpus relief was granted to 37 detainees at Guantánamo, six of which have been appealed by the U.S. Fifteen other habeas petitions of Guantánamo detainees have been denied by the district courts.

The right of detainees to habeas review has become an issue in settings outside of Guantánamo. On May 21, 2010, a federal court of appeals ruled that three prisoners held by the U.S. at Bagram Air Base in Afghanistan could not challenge their detention in U.S. courts. The non-Afghan prisoners, some of whom were captured outside of Afghanistan far from any battlefield and "rendered" or transferred to Bagram, have been held at the detention facility for more than seven years without access to a court or counsel. Separate habeas lawsuits also have been filed by the ACLU on behalf of other Bagram detainees by the ACLU but have not yet been decided.

The U.S. military recently announced its intention to transfer control of Bagram prison to the Afghan government next year. However, media outlets have reported that the Obama administration intends to maintain control over a portion of the prison and to continue detaining some prisoners in U.S. custody there, including non-Afghan terrorism suspects captured outside of Afghanistan and prisoners considered "enduring security threats." This has generated renewed concern over how the U.S. is treating detainees with alleged ties to terrorism because much of the activities at the prison have been cloaked in secrecy. In fact, until recently, even the names of those held in confinement were not disclosed.

To date, Congress has allowed the federal courts to develop their own procedures for dealing with habeas claims, but Senator Graham and others would like to change that.

S. 3707 the Terrorist Detention Review Reform Act introduced on August 4, sets forth standards for habeas corpus review for any individual who is held at Guantánamo or whom the United States seeks to hold as an unprivileged enemy belligerent. It contains an expansive definition unprivileged enemy belligerent: "an individual who has engaged in hostilities against the United States or its coalition partners, who has purposefully and materially supported hostilities against the United States or its coalition partners, or who was a member of, part of, or operated in a clandestine, covert, or military capacity on behalf of, the Taliban, al Qaeda, or associated forces." It also would prohibit any court from ordering the release of a covered individual into the United States.

D. Recently Foiled Terrorism Attacks Turn into Attacks on Miranda Rights. Even though Faisal Shahzad, the so-called Times Square Bomber, was sentenced to life imprisonment, five months and four days after he tried to blow up his car in Times Square, members of Congress continue to argue that alleged terrorists should not be given a Miranda warning. The debate has led to the introduction of legislation to modify Miranda.

S. 3081 (McCain, R-AZ), the Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010, would require an individual who is suspected of engaging in hostilities against the U.S. or its coalition partners through an act of terrorism to be placed in military custody for purposes of initial interrogation and determination of status, and allows the detention and interrogation of such individuals for a reasonable time after capture.

An interagency team would be required to interrogate an individual placed in military custody and to determine if such individual is an unprivileged enemy belligerent. The bill also would prohibit the use of appropriated funds to prosecute an unprivileged enemy belligerent in an Article III court, and would allow the detention of an unprivileged enemy belligerent without criminal charges or trial for the duration of hostilities against the United States.

H.R. 5934, the Questioning of Terrorism Suspects Act of 2011 (Schiff, D-CA), does not take as extreme an approach. It would create a procedure to question a suspected terrorist for up to four days before taking him or her before a magistrate without jeopardizing a prosecutor s ability to use statements by a suspect during that time.

E. Unfinished Business. As the 111th Congress draws to a close, very little has been settled in terms of closing Guantánamo, or how this country should defend against future terrorism threats. What should the U.S. do with those detainees who are considered too dangerous to release but not able to stand trial? What about those detainees who should be transferred but have no place to go? What will happen to KSM? What is going on at Bagram prison? Are recently captured detainees being tortured or removed to secret detention facilities? Should alleged terrorists caught on U.S. soil be denied the same due process rights accorded other criminals? The ABA has policy on only some of these thorny and divisive issues. Debate on these and other difficult questions will resume during the 112th Congress.

Key Points

  • We must protect the rights afforded in the Constitution and the delicate balance of power the Constitution provides among the branches of government during times when it may seem popular or expedient to sidestep basic Constitutional values.
  • The ABA recommendations seek to balance practical and legal concerns regarding trials of terrorist war criminals, and to preserve traditional core values of the American justice system.
  • The United States should set a strong example for upholding the rule of law by respecting its legal obligations regarding detainees in its custody.
  • Torture and other cruel, inhuman or degrading treatment of detainees violate U.S. values and image.
  • By direct constitutional demand, the writ of habeas corpus provides access to the federal courts to challenge detentions of persons by the Executive.
  • The Congress, in coordination with the Executive Branch, should establish clear standards and procedures governing detention of a U.S. citizen or resident, pursuant to 18 U.S.C. 4001 (a) which provides that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."

ABA Policy

In February 2009, the ABA adopted policy (PDF) urging the Obama administration to ensure that any detainees who are expected to be charged with crimes be prosecuted in federal district courts, unless the attorney general certifies they cannot be prosecuted in such courts but can be prosecuted in other regularly constituted courts consistent with due process, the laws of war, the Geneva Conventions and the Uniform Code of Military Justice. The policy also urged that any detainees no longer considered to be enemy combatants be released or resettled, and any currently detained enemy combatants be granted prompt habeas corpus hearings with full due process.

In August 2007, the ABA adopted policy (PDF) calling on Congress to override the executive order that interpreted the United States’ obligations under the Geneva Conventions relating to detainee treatment. Specifically, the ABA called upon Congress to establish the Army Field Manual as the uniform standard for the treatment of detainees in U.S. custody.

In August 2004, The Association adopted policy (PDF) at the 2004 Annual Meeting condemning the use of torture and cruel, inhuman, and degrading treatment of detainees in Iraq, Afghanistan and elsewhere by U.S. personnel. The policy also calls upon the Administration to comply fully with the U.S. Constitution and international laws and conventions ratified by the U.S. that outlaw torture, and urges the President and Congress to establish an independent, bipartisan commission with subpoena power to investigate the abuses of detainees.

For additional relevant policies, please click here.

Additional Resources & Links


Denise A. Cardman
Deputy Director

Governmental Affairs Office
American Bar Association
1050 Connecticut Avenue, NW
Washington, DC 20036
Direct: (202) 662-1761
FAX: (202) 662-1762
[email protected]