Days after the September 11 attacks, Congress passed a resolution authorizing Bush to use “ all necessary and appropriate force” against al Qaeda and its supporters

In November 2001, Bush signed an executive order allowing the military to hold foreign nationals indefinitely.

Within two months the US began to send prisoners to Guantanamo Bay, Cuba. (number of men incarcerated in Guantanamo Bay eventually rose to more than 700.) -- Most of the men were held secretly – not until May 2006 the US will release the names of those held.

February 2002 - Bush administration argues that terrorists who are captured are not military soldiers  (and thus under the Geneva Conventions) because they do not represent a nation state, are not in uniform, and target civilians.

What do the Geneva Conventions say?? These standards are described in Article 4 of the 1949 Geneva Conventions describing who should be afforded Prisoner of War status. But in Article 5 of the 1949 Geneva Conventions states that anyone “under definite suspicion of activity hostile to the security of the Occupying Power” shall “be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial”

That didn’t mean the detainees would be mistreated, the administration added, just that the Geneva Conventions did not need to be strictly observed. Instead the administration began to describe the prisoners as “unlawful combatants” a term not seen in the Geneva Conventions but in a relatively-obscure WWII case involving German saboteurs. (Ex Parte Quirin)

Nor are they criminals (if caught outside of the US), said the Bush administration – so the traditional mode of trying terrorists through criminal courts was out

In summary the administration argued it could hold prisoners from foreign battlefields secretly, indefinitely, without trial, and with no possibility of court challenge.

Why? Foreign nationals are not being held in US, but in Guantanamo Bay

2004 -- Rasul v Bush. Denies Bush’s assertion that Guantanamo Bay was beyond the reach of the courts. In a 6-3 ruling, the court ruled that non-citizen detainees can challenge their captivity before a neutral decision maker

2004 – Hamdi v Rumsfeld (8-1) – US citizens can challenge their designation as unlawful enemy combatant before a neutral decision maker (ie they have the right to petition for habeas corpus)

In response to Rasul and Hamdi, Bush creates the Combatant Status Review Tribunals (CSRTs) aimed at reviewing each detention on a case-by-case basis. These panels were made up of only military personnel,with no lawyers allowed, and with rules that did not allow detainees to review documents or testimony related to their capture or detention. Accused could call witnesses and present evidence if it was accessible (ie already at Guantanamo Bay) The administration argued that these tribunals satisfied the requirements of the Rasul and Hamdi decisions as well as met the need for the “fair and regular” trials described in the Geneva Conventions for “captured persons” – the subsequent CSRTs find almost everyone in Guantanamo Bay was correctly detained. There was no possibility for appeal

Congress passes the Detainee Treatment Act of 2005 which prohibits inhumane treatment of  prisoners but also states "No court, justice or judge shall have jurisdiction to hear or consider" applications for habeas corpus or "any action against the United States" brought by aliens detained at Guantanamo Bay. The law does allow prisoners to appeal a CSRT designation but only to the DC Circuit Court – the court begins to research appropriate procedures for such appeals

But the Bush Administration wanted to also establish a parallel judicial system for war crimes and acts or terrorism -- Four detainees charged war crimes to be tried by a new system of military commissions-- commissions not operated through civilian federal courts or military courts. Instead the Bush administration crafted new set of rules -- judges and prosecutors are military officials -- defense attorneys drawn from a list of approved military defense attorneys (civilian counsel could be hired but the defendant had to pay for it or pro bono). While that seems consistent with previous court martials, the Bush administration added some rules for the proceedings, arguing they were needed to protect national security. Amongst the most controversial of these rules were:

·        The accused was not guaranteed access to all the information used against him and thus might not have the opportunity to refute it.

·        The presiding officer could admit evidence that would not be allowed in a traditional criminal case or court martial. That includes testimony that was hearsay, unsworn, or even coerced.

·        All appeals went to other military judges and members of the administration and not civilian courts.

2005 – Hamden (Bin Laden’s driver) v Rumsfeld -- biggest issue was that only Congress has the power to establish federal courts and establish their rules + Only Congress had the ability to suspend Habeas Corpus in the event of “invasion and insurrection” -- Court did not see that the Congressional approval to use “all necessary and appropriate force” amounted to a green light to establish a new court system. + the court also criticized the procedures of the commissions: “the failure to guarantee the defendant the right to attend the trial and the prosecution’s ability under the rules to introduce hearsay evidence, unsworn testimony, and evidence obtained through coercion”

            Hamden is tried in August 2008 and acquitted of conspiracy but found guilty of material support of terrorism and received a 65 month sentence, with 61 months credited for time served – he is expected to serve the last month in his native Yemen

 Military Commissions Act of 2006

Defines “alien unlawful enemy combatants” in most of the law as anyone “engaged in hostilities or who has purposefully and materially supported hostilities against the United States” – allows these combatents to be tried under the military system that Bush sought

Again suspends Habeas Corpus rights (right to full appeals to the federal courts) for those designated “alien unlawful enemy combatants” by Combatant Status Review Tribunals – stills allow CSRT decisions to be appealed to the DC Circuit Court but no guarentee that defendents could see evidence – DC circuit was putting together procedures for these appeals but Boumediane beat them to it

At the tribunal, Detainees may testify, call witnesses (if available), and introduce other evidence. Prosecution can decline to reveal evidence against a defendant if it would harm national security. Hearsay or coerced evidence will be allowed if presiding officer deems it reliable

Persons tried by Military Commissions cannot rely on Geneva Convention protections –

2007 –Boumediene v Bush (5-4)

·        Held that if Congress is going to suspend Habeus Corpus it still needs to provide a procedure to protect againt unjust incarceration including a meaningful ability to examine evidence and contest the application of law.

·        Struck down both MCA and DTA sections that limited the right to appeal to the DC Circuit so that detainees can now appeal to any federal district court

January 2009 -- President Obama announces he will close down Guantanamo Bay in a year

    As of Dec 1, 2009 there were still 211 detainees still in the prison -- discussions are underway to transfer them to prisons in the US