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Closing the Guantanamo Detention Center: Legal Issues [February 11, 2011]
"The closure of the Guantanamo detention facility raises a number of legal issues with respect to the individuals formerly interned there, particularly if those detainees are transferred to the United States. The nature and scope of constitutional protections owed to detainees within the United States may be different from the protections owed to aliens held abroad. The transfer of detainees to the United States may also have immigration consequences. This report provides an overview of major legal issues likely to arise as a result of executive and legislative action to close the Guantanamo detention facility. It discusses legal issues related to the transfer of Guantanamo detainees (either to a foreign country or into the United States), the continued detention of such persons in the United States, and the possible removal of persons brought into the country. It also discusses selected constitutional issues that may arise in the criminal prosecution of detainees, emphasizing the procedural and substantive protections that are utilized in different adjudicatory forums (i.e., federal civilian courts, court-martial proceedings, and military commissions)."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John; Mason, R. Chuck
2011-02-11
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Criminal Prohibitions on the Publication of Classified Defense Information [January 10, 2011]
"The recent online publication of classified defense documents and diplomatic cables by the organization WikiLeaks and subsequent reporting by the New York Times and other news media have focused attention on whether such publication violates U.S. criminal law. The Attorney General has reportedly stated that the Justice Department and Department of Defense are investigating the circumstances to determine whether any prosecutions will be undertaken in connection with the disclosure. This report identifies some criminal statutes that may apply, but notes that these have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications related to the exercise of extraterritorial jurisdiction and whether suspected persons may be extradited to the United States under applicable treaty provisions."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2011-01-10
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Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings [March 29, 2011]
"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 to U.S. detention policy. The report also summarizes a few notable decisions by federal district courts, which have 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 a sufficient degree of support to such entities in their hostilities against the United States and its allies; adopted a functional approach for assessing whether a person is 'part of' Al Qaeda; 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; determined that Guantanamo detainees have a limited right to challenge their proposed transfer to the custody of a foreign government, but denied courts the authority to order detainees released into the United States; and held that the constitutional writ of habeas does not presently extend to noncitizen detainees held at U.S.-operated facilities in Afghanistan. Finally, the report discusses several criminal cases involving persons who were either involved in the 9/11 attacks (Zacarias Moussaoui) or were captured abroad by U.S. forces or allies during operations against Al Qaeda, the Taliban, and associated entities (John Walker Lindh and Ahmed Ghailani)."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John
2011-03-29
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Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications [March 17, 2011]
"This report provides historical background on the enactment of declarations of war and authorizations for the use of force and analyzes their legal effects under international and domestic law. It also sets forth their texts in two appendices. The report includes an extensive listing and summary of statutes that are triggered by a declaration of war, a declaration of national emergency, and/or the existence of a state of war. The report concludes with a summary of the congressional procedures applicable to the enactment of a declaration of war or authorization for the use of force and to measures under the War Powers Resolution. The report will be updated as circumstances warrant."
Library of Congress. Congressional Research Service
Grimmett, Richard F.; Elsea, Jennifer
2011-03-17
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Closing the Guantanamo Detention Center: Legal Issues [March 28, 2011]
"Following the terrorist attacks of 9/11, Congress passed the Authorization to Use Military Force (AUMF), which granted the President the authority 'to use all necessary and appropriate force against those ... [who] planned, authorized, committed, or aided the terrorist attacks' against the United States. Many persons subsequently captured during military operations in Afghanistan and elsewhere were transferred to the U.S. Naval Station at Guantanamo Bay, Cuba, for detention and possible prosecution before military tribunals. Although nearly 800 persons have been held at Guantanamo at some point since early 2002, the substantial majority of Guantanamo detainees have ultimately been transferred to another country for continued detention or release. Those detainees who remain fall into three categories: (1) persons placed in non-penal, preventive detention to stop them from rejoining hostilities; (2) persons who face or are expected to face criminal charges; and (3) persons who have been cleared for transfer or release, whom the United States continues to detain pending transfer. Although the Supreme Court ruled in Boumediene v. Bush that Guantanamo detainees may seek habeas corpus review of the legality of their detention, several legal issues remain unsettled."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John; Mason, R. Chuck
2011-03-28
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Protection of Classified Information: The Legal Framework [January 10, 2011]
"The publication of secret information by WikiLeaks and multiple media outlets has heightened interest in the legal framework that governs security classification, access to classified information, agency procedures for preventing and responding to unauthorized disclosures, and penalties for improper disclosure. Classification authority generally rests with the executive branch, although Congress has enacted legislation regarding the protection of certain sensitive information. While the Supreme Court has stated that the President has inherent constitutional authority to control access to sensitive information relating to the national defense or to foreign affairs, no court has found that Congress is without authority to legislate in this area. This report provides an overview of the relationship between executive and legislative authority over national security information, and summarizes the current laws that form the legal framework protecting classified information, including current executive orders and some agency regulations pertaining to the handling of unauthorized disclosures of classified information by government officers and employees. The report also summarizes criminal laws that pertain specifically to the unauthorized disclosure of classified information."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2011-01-10
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Satellite Surveillance: Domestic Issues [January 13, 2011]
"Reconnaissance satellites, first deployed in the early 1960s to peer into denied regions of the Soviet Union and other secretive enemy states, have from time to time been used by civilian agencies of the federal government to assist with mapping, disaster relief, and environmental concerns. These uses have been coordinated by the Civil Applications Office at the U.S. Geological Survey, a component of the Interior Department. Post 9/11, the Bush Administration sought to encourage use of satellite-derived data for homeland security and law enforcement purposes, in addition to the civil applications that have been supported for years. In 2007, it moved to transfer responsibility for coordinating civilian use of satellites to the Department of Homeland Security. The initiative was launched, however, apparently without notification of key congressional oversight committees. Members of Congress and outside groups raised concerns that using satellites for law enforcement purposes may infringe on the privacy and Fourth Amendment rights of U.S. persons. Other commentators questioned whether the proposed surveillance will violate the Posse Comitatus Act or other restrictions on military involvement in civilian law enforcement, or would otherwise exceed the statutory mandates of the agencies involved. Such concerns led Congress to preclude any funds in the Consolidated Appropriations Act, 2008 (H.R. 2764, P.L. 110-161), from being used to 'commence operations of the National Applications Office ... until the Secretary [of the Department of Homeland Security] certifies that these programs comply with all existing laws, including all applicable privacy and civil liberties standards, and that certification is reviewed by the Government Accountability Office.' (Section 525.) Similar language has been included in a subsequent Continuing Appropriations Act (P.L. 110-329) approved in September 2008."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Best, Richard A.
2011-01-13
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Criminal Prohibitions on the Publication of Classified Defense Information [December 6, 2010]
"The recent online publication of classified defense documents and diplomatic cables by the organization WikiLeaks and subsequent reporting by the New York Times and other news media have focused attention on whether such publication violates U.S. criminal law. The Attorney General has reportedly stated that the Justice Department and Department of Defense are investigating the circumstances to determine whether any prosecutions will be undertaken in connection with the disclosure. This report identifies some criminal statutes that may apply, but notes that these have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications related to the exercise of extraterritorial jurisdiction and whether suspected persons may be extradited to the United States under applicable treaty provisions."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2010-12-06
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Samantar v. Yousef: The Foreign Sovereign Immunities Act and Foreign Officials [January 11, 2011]
"On June 1, 2010, the U.S. Supreme Court decided unanimously in Samantar v. Yousef that the Foreign Sovereign Immunities Act (FSIA), which governs the immunity of foreign states in U.S. courts, does not apply in suits against foreign officials. The ruling clarifies that officials of foreign governments, whether present or former, are not entitled to invoke the FSIA as a shield, unless the foreign state is the real party in interest in the case. Samantar's particular facts involve the Alien Tort Statute (ATS) and the Tort Victims Protection Act (TVPA), but the ruling applies to all causes of action against foreign officials. The ruling leaves open the possibility that foreign officials have recourse to other sources of immunity or other defenses to jurisdiction or the merits of a lawsuit, such as foreign sovereign immunity under the common law, perhaps aided by State Department suggestions of immunity. The Court also left open the possibility that Congress could enact new provisions to address the immunity of foreign officials. Prior to the Samantar decision, most federal judicial circuits interpreted the FSIA to cover foreign officials as 'agencies or instrumentalities' of the foreign state based on their interpretation that Congress had intended to fully codify the common law of foreign sovereign immunity. To the extent the FSIA exceptions codify sovereign immunity of states under the common law, as in the case of lawsuits based on commercial activity under the restrictive theory, the recognition of a separate theory of immunity for foreign officials may not yield results significantly different from those cases in which courts applied the FSIA. The same common law considerations some courts previously applied to determine whether a foreign official is an 'agency or instrumentality' under the FSIA would likely lead to similar results where the common law is applied directly. However, where Congress enacts exceptions to the FSIA that depart from the common law, outcomes may vary from cases decided under the pre-Samantar approach."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2011-01-11
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Alien Tort Statute: Legislative History and Executive Branch Views [October 2, 2003]
"The Alien Tort Statute (ATS), also known as the Alien Tort Claims Act (ACTA), provides that 'district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.' The Second Circuit's 1980 decision in Filartiga v. Pena- Irala, a case involving torture and wrongful death that occurred in Paraguay, opened the door for the use of the ATS for aliens to assert jurisdiction in federal court for human rights violations and other violations of international law. Since 1980, the ATS has been asserted in numerous cases, with varying success, involving issues ranging from environmental torts and expropriation to torture and genocide. While human rights advocates and plaintiffs' lawyers may see great promise in the ATS as a way to vindicate human rights worldwide, others warn that it could easily spiral out of control, resulting in a deluge of foreign cases in federal courts, to the possible detriment of U.S. foreign policy interests. Of particular concern to many is the apparent rise in litigation against U.S. companies operating abroad that are accused of complicity in human rights abuses committed by the governments of their host countries. […]. The report provides a historical overview of court decisions interpreting the ATS, followed by an overview of the positions taken by the U.S. government in published opinions of the Attorney General and in court briefs related to ATS claims."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2003-10-02
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Criminal Prohibitions on the Publication of Classified Defense Information [September 10, 2010]
"The recent online publication of classified defense documents by the organization Wikileaks and subsequent reporting by the New York Times and other news media have focused attention on whether such publication violates U.S. criminal law. The Attorney General has reportedly stated that the Justice Department and Department of Defense are investigating the circumstances to determine whether any prosecutions will be undertaken in connection with the disclosure. The report identifies some criminal statutes that may apply, but notes that these have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications related to the exercise of extraterritorial jurisdiction."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2010-09-10
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Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court [April 05, 2010]
"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. […]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. The report summarizes the Supreme Court's decision in Boumediene invalidating Congress's efforts to revoke the courts' habeas jurisdiction, and discusses some remaining issues and subsequent developments."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John
2010-04-05
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Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court [April 6, 2010]
"The Obama Administration's decision to try certain detainees and other terrorist suspects in federal criminal court, including those accused of conspiring to commit the 9/11 terrorist attacks and the man arrested after a failed aircraft bombing on Christmas day, and to try other detainees by military commission, has focused attention on the procedural differences between trials in federal court and those conducted under the Military Commissions Act, as recently amended. Some who are opposed to the decision argue that bringing detainees to the United States for trial poses a security threat and risks disclosing classified information, or could result in the acquittal of persons who are guilty. Others have praised the decision as recognizing the efficacy and fairness of the federal court system and have voiced confidence in the courts' ability to protect national security while achieving justice that will be perceived as such among U.S. allies abroad. [...] This report provides a brief summary of legal issues raised by the choice of forum for trying accused terrorists and a table comparing selected military commissions rules under the Military Commissions Act, as amended, to the corresponding rules that apply in federal court."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2010-04-06
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Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings [April 1, 2010]
"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 to U.S. detention policy. The report also addresses a few notable decisions by federal district courts that are the subject of ongoing habeas litigation. Finally, it describes a few federal court rulings in criminal cases involving persons who were either involved in the 9/11 attacks or were captured abroad by U.S. forces during operations against Al Qaeda, the Taliban, and associated entities."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John
2010-04-01
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Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court [September 15, 2009]
"After the U.S. Supreme Court held that U.S. courts have jurisdiction pursuant to 28 U.S.C. § 2241 to hear legal challenges on behalf of persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the war against terrorism (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 relief in federal court by seeking a writ of habeas corpus. 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. […]. In March 2009, the Obama Administration announced a new definitional standard for the government's authority to detain terrorist suspects, which does not use the phrase 'enemy combatant' to refer to persons who may be properly detained. The new standard is 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."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Thomas, Kenneth R.; Garcia, Michael John
2009-09-15
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Military Commissions Act of 2006: Background and Proposed Amendments [September 8, 2009]
"This report provides a background and analysis of military commissions rules under the MCA. After reviewing the history of the implementation of military commissions in the 'global war on terrorism,' the report provides an overview of the procedural safeguards provided in the MCA. The report identifies pending legislation, including Senate-passed S. 1390, and describes proposals suggested by the Obama Administration. Finally, the report provides two charts comparing the MCA with proposed legislation. The first chart describes the composition and powers of the military tribunals, as well as their jurisdiction. The second chart, which compares procedural safeguards under the MCA with those established for courts-martial as well as proposed amendments to the MCA, follows the same order and format used in CRS Report RL31262, Selected Procedural Safeguards in Federal, Military, and International Courts, to facilitate comparison with safeguards provided in federal court and international criminal tribunals."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2009-09-08
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Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court [Updated April 7, 2009]
This report discusses past and recent developments of habeas corpus challenges in Federal Court. "In March 2009, the Obama Administration announced a new definitional standard for the government's authority to detain terrorist suspects, which does not use the phrase "enemy combatant" to refer to persons who may be properly detained. The new standard is 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."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Thomas, Kenneth R.; Garcia, Michael John
2009-04-07
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Satellite Surveillance: Domestic Issues [February 1, 2010]
"Reconnaissance satellites, first deployed in the early 1960s to peer into denied regions of the Soviet Union and other secretive enemy states, have from time to time been used by civilian agencies of the federal government to assist with mapping, disaster relief, and environmental concerns. These uses have been coordinated by the Civil Applications Office at the U.S. Geological Survey, a component of the Interior Department. Post 9/11, the Bush Administration sought to encourage use of satellite-derived data for homeland security and law enforcement purposes, in addition to the civil applications that have been supported for years. In 2007, it moved to transfer responsibility for coordinating civilian use of satellites to the Department of Homeland Security. The initiative was launched, however, apparently without notification of key congressional oversight committees. Members of Congress and outside groups raised concerns that using satellites for law enforcement purposes may infringe on the privacy and Fourth Amendment rights of U.S. persons. Other commentators questioned whether the proposed surveillance will violate the Posse Comitatus Act or other restrictions on military involvement in civilian law enforcement, or would otherwise exceed the statutory mandates of the agencies involved."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Best, Richard A.
2010-02-01
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Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court [January 26, 2010]
"The Obama Administration's decision to try certain detainees and other terrorist suspects in federal criminal court, including those accused of conspiring to commit the 9/11 terrorist attacks and the man arrested after a failed aircraft bombing on Christmas Day, 2009, and to try other detainees by military commission, has focused attention on the procedural differences between trials in federal court and those conducted under the Military Commissions Act (MCA), as recently amended. Some who are opposed to the decision argue that bringing detainees to the United States for trial poses a security threat and risks disclosing classified information, or could result in the acquittal of persons who are guilty. Others have praised the decision as recognizing the efficacy and fairness of the federal court system and have voiced confidence in the courts' ability to protect national security while achieving justice that will be perceived as such among U.S. allies abroad. Some continue to object to the planned trials of detainees by military commission, despite the amendments Congress enacted as Title XVIII of the National Defense Authorization Act for Fiscal Year 2010, P.L. 111-84, because they say it demonstrates a less than full commitment to justice or that it casts doubt on the strength of the government's case against those detainees. Four bills have been introduced in the House of Representatives to require military commission trials for certain classes of suspected terrorists or to authorize their detention: H.R. 4111, H.R. 4463, H.R. 4415, and H.R. 4127. One bill in the Senate, S. 2943, would require the Attorney General to consult with the Director of National Intelligence as well as the Secretaries of Defense and Homeland Security prior to proceeding against a terrorism suspect in the criminal justice system."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2010-01-26
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Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court [February 3, 2010]
"After the U.S. Supreme Court held that U.S. courts have jurisdiction pursuant to 28 U.S.C. § 2241 to hear legal challenges on behalf of persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the war against terrorism (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 relief in federal court by seeking a writ of habeas corpus. 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. [...] In March 2009, the Obama Administration announced a new definitional standard for the government's authority to detain terrorist suspects, which does not use the phrase 'enemy combatant' to refer to persons who may be properly detained. The new standard is 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 [Authorization to Use Military Force] 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."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John
2010-02-03
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Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court [January 29, 2009]
"After the U.S. Supreme Court held that U.S. courts have jurisdiction pursuant to 28 U.S.C. § 2241 to hear legal challenges on behalf of persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the war against terrorism (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 relief in federal court by seeking a writ of habeas corpus. 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. [...]. This report provides an overview of the CSRT procedures; summarizes selected court cases related to the detentions and the use of military commissions; discusses the Detainee Treatment Act, as amended by the Military Commissions Act of 2006, analyzing its effects on detainee-related litigation in federal court; and discusses the Supreme Court's decision in Boumediene and possible effects upon legal challenges raised by detainees. The report summarizes pending legislation and provides an analysis of relevant constitutional issues that may have some bearing on Congress's options with respect to detainees held at Guantanamo and elsewhere."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Thomas, Kenneth R.; Garcia, Michael John
2009-01-29
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U.S. Treatment of Prisoners in Iraq: Selected Legal Issues [Updated January 14, 2005]
"Photographs depicting the apparent abuse of Iraqi detainees at the hands of U.S. military personnel at Abu Ghraib prison in Iraq have resulted in numerous investigations, congressional hearings, and prosecutions, raising questions regarding the applicable law. The international law of armed conflict, in particular, those parts relating to belligerent occupation, applies in Iraq. The four Geneva Conventions of 1949 related to the treatment of prisoners of war (POW) and civilian detainees, as well as the Hague Regulations define the status of detainees and state responsibility for their treatment. Other international law relevant to human rights and to the treatment of prisoners may also apply. For example, the International Covenant on Civil and Political Rights prohibits "cruel, inhuman or degrading treatment." The U.N. Declaration on Human Rights and the U.N. Convention Against Torture (CAT) is also relevant. Federal statutes that implement the relevant international law, such as the War Crimes Act of 1996 and the Torture Victim Protection Act, as well as other criminal statutes with extraterritorial application may also come into play. Finally, the law of Iraq as amended by regulations issued by the Coalition Provisional Authority (CPA) may apply in some circumstances."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2005-01-14
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Implications of the Vienna Convention on Consular Relations upon the Regulation of Consular Identification Cards [Updated May 23, 2005]
"Recent controversy regarding the use of consular identification cards (IDs) by aliens within the United States, in particular Mexico's matricula consular, has led to calls for legislation to regulate the issuance of the cards by foreign missions or their acceptance by U.S. government and private entities. This report identifies possible implications that U.S. regulation or monitoring of the issuance of these cards by foreign missions might have upon U.S. obligations under the Vienna Convention on Consular Relations (VCCR), which protects foreign missions in the exercise of their legitimate consular functions and codifies customary international law with respect to the inviolability of consular premises and documents. The REAL ID Act (P.L. 109-13, Division B) prohibits states, when issuing drivers' licenses or state ID cards, from accepting for purposes of personal identification foreign documents other than valid passports, if such drivers' licenses or ID cards are to be accepted for federal purposes. Other recent legislative proposals aimed at restricting the acceptance (but not the issuance) of consular IDs include H.R. 688, the SAFER Act, introduced by Representative J. Gresham Barrett on February 9, 2005; H.R. 815, the Financial Customer Identification Verification Improvement Act, introduced by Representative Scott Garrett on February 15, 2005; and H.R. 925, the Identification Integrity Act of 2005, introduced by Representative Elton Gallegly on February 17, 2005."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John
2005-05-23
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Detention of American Citizens as Enemy Combatants [Updated March 31, 2005]
"The Supreme Court in 2004 issued three decisions related to the detention of 'enemy combatants,' including two that deal with U.S. citizens in military custody on American soil. In 'Hamdi v. Rumsfeld', a plurality held that a U.S. citizen allegedly captured during combat in Afghanistan and incarcerated at a Navy brig in South Carolina is entitled to notice and an opportunity to be heard by a neutral decision-maker regarding the government's reasons for detaining him. The Court in 'Rumsfeld v. Padilla' overturned a lower court's grant of habeas corpus to another U.S. citizen in military custody in South Carolina on jurisdictional grounds. The decisions affirm the President's powers to detain 'enemy combatants,' including those who are U.S. citizens, as part of the necessary force authorized by Congress after the terrorist attacks of September 11, 2001. However the Court appears to have limited the scope of individuals who may be treated as enemy combatants pursuant to that authority, and clarified that such detainees have some due process rights under the U.S. Constitution. This report, which will be updated as necessary, analyzes the authority to detain American citizens who are suspected of being members, agents, or associates of Al Qaeda, the Taliban and possibly other terrorist organizations as 'enemy combatants.'"
Library of Congress. Congressional Research Service
Elsea, Jennifer
2005-03-31
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Detention of American Citizens as Enemy Combatants [Updated February 24, 2005]
"This report provides background information regarding the cases of two U.S. citizens deemed "enemy combatants," Yaser Esam Hamdi, who has been returned to Saudi Arabia, and Jose Padilla, who remains in military custody. A brief introduction to the law of war pertinent to the detention of different categories of individuals is offered, followed by brief analyses of the main legal precedents invoked to support the President's actions, as well as Ex parte Milligan, which some argue supports the opposite conclusion. A discussion of U.S. practice during wartime to detain persons deemed dangerous to the national security follows, including legislative history that may help to shed light on Congress' intent in authorizing the use of force to fight terrorism. The report concludes that historically, even during declared wars, additional statutory authority has been seen as necessary to validate the detention of citizens not members of any armed forces, casting in some doubt the argument that the power to detain persons arrested in a context other than actual hostilities is necessarily implied by an authorization to use force."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2005-02-24
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Treatment of 'Battlefield Detainees' in the War on Terrorism [Updated September 17, 2003]
"This report provides an overview of the law of war and the historical treatment
of wartime detainees, in particular the United States' practice for determining their status, and describes how the detainees' status might affect their rights and treatment. The report also reviews the current status of petitions for habeas corpus filed on behalf of detainees held at Guantnamo Bay Naval Station. The report concludes with a discussion of Congress' role and legislative proposals related to detention in connection with the war against terrorism, including H.R. 1290, H.R. 1029 and title I, subtitle C of S. 22."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2003-09-17
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Detention of American Citizens as Enemy Combatants [January 30, 2003]
"This report, which will be updated as necessary, analyzes the authority to detain American citizens who are suspected of being members, agents, or associates of Al Qaeda, the Taliban and possibly other terrorist organizations as "enemy combatants." The Department of Justice cites two World War II era cases, Ex parte Quirin and In re Territo, to support its contention that the President may order that certain U.S. citizens as well as non-citizens be held as enemy combatants pursuant to the law of war and Article II of the Constitution. Critics, however, question the assertion of executive authority to detain U.S. citizens, without ordinary due process of law, in order to prevent terrorist acts or gather intelligence; and some argue that Congress
has prohibited such detention of U.S. citizens when it enacted 18 U.S.C. 4001(a). So far, federal courts have agreed with the Bush Administration that Congress authorized such detentions in its authorization for the President to use force against those he determines are responsible for the September 11, 2001, attacks on the United States. Many observers expect that the issue will reach the Supreme Court, where the debate may center on whether congressional authorization is necessary and whether Congress has in fact authorized the detentions."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2003-01-30
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Weapons of Mass Destruction Counterproliferation: Legal Issues for Ships and Aircraft [October 1, 2003]
"Aspects of this national security strategy raise questions related to the
international law of jurisdiction, the law of the sea (which also references airspace), and international civil aviation agreements. The right of States to conduct self defense and law enforcement activities abroad has the potential to collide with the rights of other States to maintain their sovereign integrity and conduct free navigation and commerce. These rights are not absolute. This report provides an overview of the international law of the sea and other agreements as they relate to the permissible range of methods for interdicting WMD-related contraband. After a short summary of the current legal regime for international arms control related to WMD, the report outlines the basic concepts of jurisdiction in international law. Next, the report describes concepts central to the law of the sea, including the division of the world's
waters and airspace into "international" and "national" territory, and a description of the rights, duties and limitations that apply depending on where the conduct takes place. The report then turns to the international legal framework limiting the conduct of nations as it applies during times of war and peace, and during what has been called 'quasi war.'"
Library of Congress. Congressional Research Service
Elsea, Jennifer
2003-10-01
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Intelligence Identities Protection Act [January 28, 2011]
"This report summarizes the Intelligence Identities Protection Act, P.L. 97-200, enacted by Congress in 1982 to address the unauthorized disclosure of information that exposes covert U.S. intelligence agents. The act, as amended, is codified at 50 U.S.C. §§ 421-426, and provides criminal penalties in certain circumstances for intentional, unauthorized disclosure of information identifying a covert agent, where those making such a disclosure know that the information disclosed identifies the covert agent as such and that the United States is taking affirmative measures to conceal the covert agent's foreign intelligence relationship to the United States. The act prescribes punishments for disclosing the identities of covert agents with increasing severity according to the level of access to classified information the offender exploited. Offenders without authorized access to classified information are subject to punishment only if they participated in a pattern of activity designed to discover and reveal the identities of covert agents and have reason to believe that such disclosure will harm U.S. intelligence operations. The act also provides exceptions and defenses to prosecution, makes provision for extraterritorial application for offenders who are U.S. citizens or permanent resident aliens, includes reporting requirements to Congress, and sets forth definitions of the terms used in the act. There do not appear to be any published cases involving prosecutions under this act, despite some high-profile incidents involving the exposure of U.S. intelligence agents. Although some officials have expressed concern that the WikiLeaks disclosures could endanger the lives of persons who provided information to assist U.S. forces in Iraq or Afghanistan or to embassy officials, the narrowness of the statute makes it an unlikely vehicle for prosecuting anyone responsible for publishing those names."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2011-01-28
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Detention of American Citizens as Enemy Combatants [Updated March 15, 2004]
"This report, which will be updated as necessary, analyzes the authority to detain American citizens who are suspected of being members, agents, or associates of Al Qaeda, the Taliban and possibly other terrorist organizations as 'enemy combatants.' The Department of Justice cites two World War II era cases, Ex parte Quirin and In re Territo, to support its contention that the President may order that certain U.S. citizens as well as non-citizens be held as enemy combatants pursuant to the law of war and Article II of the Constitution. Critics, however, question the assertion of executive authority to detain U.S. citizens, without ordinary due process of law, in order to prevent terrorist acts or gather intelligence; and some argue that Congress
has prohibited such detention of U.S. citizens when it enacted 18 U.S.C. § 4001(a). While the Fourth Circuit Court of Appeals has agreed with the Bush Administration that Congress authorized such detentions in its authorization for the President to use force against those he determines are responsible for the September 11, 2001, attacks on the United States, the Second Circuit recently held that Congress has not authorized such detentions. The Supreme Court has granted certiorari in both cases and will hear them together on April 28, 2004."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2004-03-15
