Detainee Treatment Act of 2005
In contrast to the Executive Branch’s near instantaneous response to Hamdi and Rasul with the implementation of the CRSTs, Congress took no immediate action.[1] This inactivity ended in November 2005, however, when the Supreme Court announced its decision to grant certiorari in Hamdan v. Rumsfeld, the first Enemy Combatant case to reach the Court since the trio of Hamdi, Rasul and Padilla in 2004.[2] By the end of December, Congress had passed the Detainee Treatment Act (DTA),[3] part of which included jurisdiction-stripping measures intended to overrule Rasul’s recognition of a statutory habeas right.
With regard to the Enemy Combatant Cases, the most significant portion of the DTA was § 1005(e), which amended the federal habeas corpus statute so as to limit federal court jurisdiction over the habeas petitions of alien Guantanamo detainees.[4] Congress amended the statute to read that
“no court, justice, or judge shall have jurisdiction to hear or consider . . . an application for writ of habeas corpus filed by or on behalf of an alien detained . . . at Guantanamo Bay.”[5]
Prior to the Court’s contrary interpretation in Hamdan, the amended language was universally believed to have stripped all federal courts of the ability to hear Guantanamo detainees’ habeas claims.[6]
In addition to Congress’ attempt to overrule Rasul, the DTA contained multiple provisions designed to conform to the due process standards the Supreme Court had outline in Hamdi. For this reason, Congress “incorporated the executive regulations concerning military administrative determination of ‘enemy combatant’ status followed by CSRT review, while adding a requirement that the Secretary of Defense promulgate procedures for periodic consideration of ‘any new evidence.’”[7]
The DTA further “gave the U.S. Court of Appeals for the D.C. Circuit ‘exclusive jurisdiction’ to decide whether the Defense Department’s standards and procedures were properly applied by the CSRT and were consistent with the federal Constitution and law.”[8] The D.C. Circuit’s jurisdiction included review of military commission decisions.[9]
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[1] Josh Benson, The Guantanamo Game: A Public Choice perspective on Judicial Review in Wartime, 97 Cal. L. Rev. 1219, 1240 (2009)
[2] Id.
[3] Detainee Treatment Act of 2005, Pub. L. No. 109-148, § 1005, repealed by Military Commissions Act of 2006 (hereinafter DTA).
[4] DTA, § 1005(e).
[5] Id.
[6] John Yoo, National Security and the Rehnquist Court, 74 Geo. Wash. L. Rev. 1144, 1163 (2006) (commenting on the “long list of law professors” who sent a letter to Congress expressing concern that the DTA would strip “federal court jurisdiction over currently pending habeas petitions).
[7] DTA, § 1005(a); Robert J. Pushaw, Creating Legal Rights for Suspected Terrorists: Is the Court Being Courageous or Politically Pragmatic? 84 Notre Dame L. Rev. 1975, 2009 (2009).
[8] DTA, § 1005(e); Pushaw, supra note 7, at 2009.
[9] DTA § 1005(e); Pushaw, supra note 7, at 2009.