Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings

by Sabrina I. Pacifici on December 17, 2012

CRS – Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings. December 11, 2012

  • “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. In particular, it summarizes notable decisions which have (1) 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 support to such entities in their hostilities against the United States and its allies; (2) adopted a functional approach for assessing whether a person is “part of” Al Qaeda; (3) 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; (4) determined that Guantanamo detainees have a limited right to challenge their proposed transfer to foreign custody, but denied courts the authority to order detainees released into the United States; and (5) 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 a few 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).”
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