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Administration Won't Seek New Indefinite-Detention System
Those held by the government can challenge their detention in habeas proceedings in U.S. District Court in the District of Columbia, which has effectively become a national security court through its ongoing review of the evidence against Guantanamo Bay detainees.
About 200 detainees have filed suit under habeas corpus, a centuries-old legal doctrine that allows prisoners to challenge their confinement through the courts.
The government has lost 30 of 38 habeas cases in U.S. District Court, with the judges often citing a lack of evidence to justify continued incarceration. However, 20 of those detainees continue to be held at Guantanamo Bay because the government has not found countries willing to take them, according to statistics compiled by David H. Remes, a habeas lawyer.
Separately, a Justice Department-led review team is also examining the cases of the 226 detainees held at Guantanamo Bay and recommending many for repatriation or resettlement in third countries. The panel will decide which detainees should be prosecuted and whether some should be held in prolonged detention.
Federal judges in habeas cases have also circumscribed the government's rationale for continued detention but have not challenged its fundamental power to detain.
In federal court in March, the Obama administration cited the 2001 congressional authorization of force to assert that "the president has the authority to detain persons that the president determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The president also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces."
That recast the Bush administration's broad claim of inherent executive authority to hold any person who was "part of or supporting" the Taliban or al-Qaeda.