In November 2001, President Bush issued a Military Order on Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, which claimed the right to imprison suspected terrorists without charge or trial. As the United States proceeded to seize suspected terrorists throughout the world, from the battlefields of Afghanistan to Europe, Africa and the United States, it claimed that it had the authority to hold such individuals as “unlawful enemy combatants” as part of the global war on terror. It initially claimed that authority based solely on the President’s powers under Article II of the Constitution without relying on any congressional authorization. It also claimed that individuals could be held as such incommunicado, without access to any court review and outside the protections of the Geneva Convention guaranteeing humane treatment. For a more complete discussion, see Military Detentions and Commissions.
Below is information on just a few of the cases where individuals challenged their designation as unlawful enemy combatants and CNSS filed amicus briefs.
José Padilla is an American citizen who was detained in Chicago in 2002 and whom Attorney General Ashcroft accused of plotting to detonate a "dirty bomb." Instead of filing criminal charges against him, President Bush designated Padilla as an "enemy combatant" and held him for over 3 years in a military prison without charge or trial.
On March 6, 2009 the Supreme Court ended the case of Ali al-Marri, a legal U.S. resident who had been held in solitary confinement in the United States as an “enemy combatant,” without charge or trial, for several years. At the request of the Obama Administration, the Court erased a 2008 decision by the U.S. Court of Appeals for the Fourth Circuit that held that the previous Administration had the authority to indefinitely detain legal U.S. residents in military custody without trial.
CNSS Director Kate Martin noted at the time:
“This is a very important victory for the rule of law and civil liberties. With President Obama's decision to transfer al-Marri from the military prison to civilian authorities, there is no longer anyone seized in the U.S. being held by the military without trial, for the first time since 2002. And now the appeals court decision approving that practice has been undone. There is every reason to hope that at the end of the administration's detention policy review it will formally renounce any claim to such extraordinary and unconstitutional authority.”
For more on how ending the military imprisonment of “enemy combatants” seized in the U.S. respects the rule of law and civil liberties, and makes the United States safer, see the January 2009 amicus brief filed by Suzanne Spaulding and other former national security officials and counterterrorism experts.
In 2001, Salim Ahmed Hamdan, a Yemeni national who had worked as a driver for Osama Bin Laden, was captured in Afghanistan and turned over to U.S. military custody. He was transferred to Guantanamo in early 2002, where he was held without trial as an "enemy combatant" before facing charges of conspiracy to commit terrorism by a military commission in 2004. Hamdan challenged the legality of the military commission system before the Supreme Court, which ruled the Bush administration military commissions unlawful. He was subsequently tried and convicted of providing material support to terrorism under the reformed military commissions authorized by Congress under the Military Commissions Act of 2006. In 2009, he was released to Yemen where he completed the final month on his prison sentence.
In 2012, his conviction was overturned on appeal to the federal civilian court of appeals. The D.C. Circuit held that his conviction for material support of terrorism could not stand because material support was not prohibited as a crime under the international law of war during 1996 to 2001 when Hamdan was alleged to have engaged in acts of material support. Hamdan v. United States, 2012 U.S. App. LEXIS 21385 (D.C. Cir. Oct 16, 2012).