The following is a brief and necessarily incomplete outline of the use of military detentions by the United States since 9/11. For a more analytical discussion of the history, see the 2008 testimony of CNSS Director Kate Martin before the Senate Judiciary Committee.
After the terrible events of September 11, the international community was united in its support for the United States and in its condemnation of the attacks. But the United States subsequently lost much of the good will and cooperation of the international community as a result of its flawed detention policies. The Executive Branch, under President George W. Bush, advanced extraordinary and unsupportable claims that the President is free to ignore and even violate established law in order to conduct a “Global War on Terror:"
“As the Supreme Court has recognized, . . . the President enjoys complete discretion in the exercise of his commander-in-chief authority in conducting operations against hostile forces.” - John C. Yoo, Deputy Assistant Attorney General (2003)
Those claims informed that administration’s detention policies and their view that neither Congress nor the judiciary have any role in legislating or overseeing detentions, a conclusion that was rejected by the Supreme Court in Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
"We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the nation's citizens."
For a more complete discussion of these issues, see "Detainees, Go Slow on Expanding Detention Authority," by Patricia Wald and Joe Onek (2005).
On November 13, 2001, President Bush issued Military Order No. 1, which established military commissions and authorized the military detention without charge or trial of any non-citizen found in the United States and suspected of being involved in terrorist activities. In May 2002, the President directed the military to seize a U.S. citizen in Chicago, José Padilla, who was then held for more than three years incommunicado without charge or access to a lawyer, solely on the say-so of the President. In 2006, in order to avoid review by the Supreme Court of the lawfulness of Padilla’s military detention, the Bush administration transferred him for criminal trial where he was ultimately convicted.
In 2003, President Bush also directed the military to seize a non-citizen lawfully present in the United States, Ali al-Marri, then awaiting criminal trial, and hold him incommunicado in military detention. The courts eventually insisted that al-Marri be provided access to a lawyer and the right to file a habeas petition challenging his detention. At the end of the Bush administration in January 2009, al-Marri was still in military detention awaiting Supreme Court review of his case.
The United States and the international community responded to the attacks of September 11, 2001 by al Qa'ida as acts of war. Congress passed the Authorization to Use Military Force “as necessary and appropriate” against al Qa'ida and the Taliban in Afghanistan and those individuals, who “planned, authorized, committed or aided” the 9/11 attacks. The United Nations Security Council recognized the attacks as threats to peace and security, justifying the international use of force in Afghanistan under the U.N. Charter. Pursuant to these authorities, the United States sent troops to Afghanistan in October. After the US invasion of Iraq in 2003, al Qa'ida fighters also attacked U.S. and allied troops there.
There is no doubt that traditional laws of war authorize the U.S. to detain enemy fighters in Afghanistan as the Supreme Court held in 2004. However, the Bush administration argued that the threat from al Qa'ida is unprecedented in nature and magnitude and, accordingly, claimed a plenary right to use military force without acknowledging any obligation to follow the rules of war as traditionally understood and articulated by the U.S. military. Thus, while the Bush administration claimed that being at war justified its extraordinary and unprecedented detention practices, it failed to adhere to the rules universally acknowledged to be applicable to military conflicts.
The Bush administration
Detainees held in Afghanistan, Guantanamo, black sites around the world, and apparently even in the U.S., were in fact abused and even tortured in violation of the laws of war. In 2005, the Liberty and Security Initiative of The Constitution Project sent a letter to Congress seeking investigations into the practice of extraordinary rendition.
Since the announcement of Military Order No. 1, civil liberties and human rights groups, Members of Congress, bar associations, editorial writers, the press, former government and military officials, and the general public have criticized and condemned these policies. CNSS has been actively involved in these efforts. Ultimately, the Supreme Court directly rejected the Bush administration’s policies, ruling in Hamdan v. Rumsfeld, 548 U. S. 557 (2006) that Common Article 3 of the Third Geneva Convention requiring humane treatment of detainees does apply to individuals seized and held in the administration's "War on Terror."
The scope of authority to detain enemy fighters under the laws of war has been disputed ever since the Bush administration set up detention operations and constructed a prison at Guantanamo Bay, Cuba outside traditional military detention rules. Various aspects of the issue have been before the Supreme Court on multiple occasions and there are still court challenges being brought by detainees held at Guantanamo.
In 2004, the Supreme Court in the Hamdi case reaffirmed that under the law of war, when the U.S. military is engaged in active combat, it has the authority to seize fighters on the battlefield and detain them as combatants under the law of war without charge or trial. While the Bush administration had argued that the President has power on his own to authorize detention, the Court held that such detention had been authorized by Congress when it passed the Authorization to Use Military Force in September, 2001. CNSS and others had filed an amicus brief in a companion case urging this result and arguing that law of war detention authority is limited.
The Court was very careful to limit its decision to the facts before it: the detainee, Hamdi, had been captured in Afghanistan fighting against U.S. or allied forces. Hamdi was a U.S. citizen and the Court held that citizens who join enemy forces are subject to law of war detention like any other fighters. The Court explained that such law of war detention could last until the end of hostilities – that is indefinitely – as its purpose is to prevent enemy fighters from returning to the fight. The Court did not decide when the hostilities would end, but did decide that there was no doubt that hostilities were continuing at that time in Afghanistan and thus continued detention was lawful. Some have argued that such traditional law of war detention does not apply in Non-International Armed Conflicts (NIACs), which do not involve hostilities between two states. Nevertheless, the Supreme Court relied on the law of war even though at the time of the Hamdi decision, the conflict in Afghanistan had become a NIAC, as the Taliban were no longer representing the government of Afghanistan.
Beginning in 2004 in the Rasul case, the Supreme Court also issued a series of rulings affirming that individuals being detained at Guantanamo have the right to challenge their detention using habeas corpus writs in federal court in the U.S. The 2004 Supreme Court rulings represented victories for the rule of law, but only the beginning of the dismantlement of the illegal system of detention and interrogation created by the Executive branch. See "Enemy Combatants," the Constitution, and the Administration's "War on Terror" (2004).
In the second term of the Bush administration, the Executive continued its "Global War on Terror" detention policy and attempted to convene military commissions for some prisoners. By the end of the Bush administration the U.S. had seized individuals not just in the midst of hostilities in Afghanistan, but all over the world, including in Europe and the United States. It had ignored traditional military law and practice by not providing any process (such as that required under Article 5 of the Geneva Convention) to determine whether an individual was in fact a fighter subject to law of war detention or a civilian; it had transferred hundreds of individuals to prison at Guantanamo and claimed that they were beyond the reach of any impartial review of the legality of their detention; and it had fought against any meaningful review of the detentions in Guantanamo including habeas corpus review. While the administration never agreed that its detention powers were required to come from Congress, the Congress, pushed by Court rulings and public criticism, did pass a number of measures including the Detainee Review Act and the Military Commissions Act of 2006.
At the end of the Bush administration, the United States still claimed the right to seize any individual anywhere in the world and hold him incommunicado in a secret prison indefinitely without trial as an “unlawful enemy combatant” in a “Global War on Terror.” It was still holding an individual seized in the United States in military prison without charge or trial. It is now clear that the core reason for doing so was to be able to use “enhanced interrogation techniques” that are internationally recognized and outlawed as torture. In the case of U.S. citizen José Padilla, who was held incommunicado for more than three years, the government actually acknowledged that it detained him in order to interrogate him, not simply to prevent him from "returning to the fight" under traditional laws of war.
The result of the Bush administration policies was a growing international consensus that the United States was not following the law, but instead making up rules for detentions and interrogations. The administration’s claim that the United States was engaged in a “Global War on Terror” was used to justify detentions that violated human rights and constitutional protections. Guantanamo Bay in particular came to be seen by the world as a symbol for lawlessness and abuse.
These detention policies undermined rather than strengthened U.S. power. They discouraged and interfered with, rather than advancing international cooperation, and provided fuel to al Qa'ida efforts to recruit foreign terrorists. The universal calls to close Guantanamo in 2008 reflected the recognition that these detention policies that were inconsistent with the U.S. commitment to the rule of law and human rights also harmed our national security.