The Law of War

Most of the individuals detained by the U.S. military on the orders of the U.S.
administration were initially captured in Afghanistan. The foreign detainees are held in
the Guantanamo Bay detention camp established for the purpose at the Guantanamo
Bay Naval Base, Cuba. Guantanamo was chosen because, although it is under the de
facto control of the United States administration, it is not a sovereign territory of the
United States, and a previous Supreme Court ruling Johnson v. Eisentrager in 1950 had
ruled that U.S. courts had no jurisdiction over enemy aliens held outside the USA.
In Rasul v. Bush, the Supreme Court ruled that "the U.S. Guantanamo Bay, Cuba,
Naval Base, which the United States occupies under a lease and treaty recognizing
Cuba's ultimate sovereignty, but giving this country complete jurisdiction and control for
so long as it does not abandon the leased areas", and that as the United States had
complete jurisdiction, the federal courts have the authority under the federal habeas
corpus statute to decide whether foreign nationals (non-U.S. citizens) held in
Guantanamo Bay were rightfully imprisoned. This ruling largely overturned the judicial
advantage for the U.S. administration of using the Naval Base that Johnson v.
Eisentrager seemed to have conferred.
Legal Challenges
There have been a number of legal challenges made on behalf of the detainees held in
Guantanamo Bay detention camp and in other places. These include:
On 30 July 2002, the U.S. District Court for the District of Columbia ruled in Rasul
v. Bush, that it did not have jurisdiction because Guantanamo Bay Naval Base is
not a sovereign territory of the United States. This decision was appealed to the
D.C. Circuit Court of Appeals, which upheld the decision, (along with a related
case in March 2003 — see Al-Odah v. United States). Rasul v. Bush was
appealed to the United States Supreme Court on 2 September 2003.
On 10 November 2003, the United States Supreme Court announced that it
would decide on appeals by Afghan war detainees who challenge their continued
incarceration at Guantanamo Bay Naval Base as being unlawful, (See Rasul v.
Bush).
On 10 January 2004, 175 members of both houses of Parliament in the UK filed
an amici curiae brief to support the detainees' access to US jurisdiction.
On 28 June 2004, the Supreme Court ruled in Rasul v. Bush that detainees in
Guantanamo Bay Naval Base could turn to U.S. courts to challenge their
confinement, but can also be held without charges or trial.
On 7 July 2004, In response to the Supreme Court ruling, the Pentagon
announced that cases would be reviewed by military tribunals, in compliance with
Article 5 of the Third Geneva Convention.
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