Detainee Treatment Act

The Detainee Treatment Act (DTA) was signed into law on December 30, 2005, and addresses many issues related to enemy combatants detained by the United States military. It places restrictions on the treatment and interrogation of detainees in U.S. custody, and it furnishes procedural protections for U.S. personnel accused of engaging in improper interrogation. DTA §§ 1002-1004, 119 Stat. 2739-2740. It also sets forth certain "procedures for status review of detainees outside the United States." § 1005, id., at 2740.

Subsections (a) through (d) of § 1005 direct the Secretary of Defense to report to Congress the procedures being used by CSRTs to determine the proper classification of detainees held in Guantanamo Bay, Iraq, and Afghanistan, and to adopt certain safeguards as part of those procedures.

Subsection (e) of § 1005, which is entitled "Judicial Review of Detention of Enemy Combatants," supplies the basis for the Government's jurisdictional argument. The subsection contains three numbered paragraphs. The first paragraph amends the judicial code as follows:

(1) In general.--Section 2241 of title 28, United States Code, is amended by adding at the end the following:

.....

"'(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider--

"'(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or

[*2763] "'(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who--

"'(A) is currently in military custody; or

"'(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.'" § 1005(e), id., at 2741-2742.

Paragraph (2) of subsection (e) vests in the Court of Appeals for the District of Columbia Circuit the "exclusive jurisdiction to determine the validity of any final decision of a [CSRT] that an alien is properly designated as an enemy combatant." Paragraph (2) also delimits the scope of that review. See §§ 1005(e)(2)(C)(i)-(ii), id., at 2742.

Paragraph (3) mirrors paragraph (2) in structure, but governs judicial review of final decisions of military commissions, not CSRTs. It vests in the Court of Appeals for the District of Columbia Circuit "exclusive jurisdiction to determine the validity of any final decision rendered pursuant to Military Commission Order No. 1, dated August 31, 2005 (or any successor military order)." § 1005(e)(3)(A), id., at 2743. Review is as of right for any alien sentenced to death or a term of imprisonment of 10 years or more, but is at the Court of Appeals' discretion in all other cases. The scope of review is limited to the following inquiries:

"(i) whether the final decision [of the military commission] was consistent with the standards and procedures specified in the military order [**743] referred to in subparagraph (A); and

"(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States." § 1005(e)(3)(D), ibid.

Finally, § 1005 contains an "effective date" provision, which reads as follows:

(1) In general.--This section shall take effect on the date of the enactment of this Act.

"(2) Review of Combatant Status Tribunal and Military Commission Decisions.--Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act." § 1005(h), id., at 2743-2744. 3

The original Act had an ambiguity about whether paragraph (1) of subsection (e) "shall apply" to claims pending on the date of enactment; a subsequent amendment clarified that it did.

## Sources[edit]

* Hamdan v. Rumsfeld (2006)