CRS – Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings. Jennifer K. Elsea, Legislative Attorney; Michael John Garcia, Legislative Attorney. April 21, 2014

“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 personis “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; and (5) held that the constitutional writ of habeas does not extend to noncitizen detainees held at U.S.-operated facilities in Afghanistan. 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. The full implications of the 2012 NDAA upon wartime detention jurisprudence remain to be seen. 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.”