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of war, in keeping with the executive order. In particular, the government argued that
because Guantanamo Bay is in Cuba rather than in the United States, U.S. courts did not
have jurisdiction to consider the legality of their detention. Amnesty International has
expressed the views of many human rights advocates in asserting that as a result, the
detainees are "held in effect in a legal black hole, many without access to any court, legal
counsel or family visits."
The legality of the detainees' status has been the subject of numerous lawsuits, most of
which have been decided against the Bush administration. In 2004, Rasul v.
Bushchallenged the U.S. government's practice of denying Guantanamo detainees the
ability to file habeas corpus petitions in federal court. The Supreme Court ruled that
because the United States has "complete jurisdiction" over the base, detainees may file
habeas corpus petitions in American courts to challenge the validity of their detention.19
In response, the Defense Department in July 2004 announced the creation of Combatant
Status Review Tribunals, in which detainees could contest their status as enemy
combatants. The detainees would be allowed to view all unclassified evidence against them
and to argue before military officials that they had been improperly designated and should
be released. In February 2005, a federal judge ruled that the combatants were entitled to
consult with legal counsel and to view all of the evidence against them in order to mount a
defense.20
The Supreme Court dealt another blow to the Bush administration in Hamdan v.
Rumsfeld (2006). In this case the court held that special military commissions set up to try
detainees, which were separate from the review tribunals, "violate both the [Uniform Code
of Military Justice] and the four Geneva Conventions."21 The court found the
administration's plan for the commissions inadequate, since it deviated from normal
courtroom procedure--without explicit approval from Congress--by admitting evidence
kept secret from defendants, allowing testimony gained through torture, and submitting
appeals to the executive branch rather than to an appellate court. As a result of the
decision, in July 2006 the Bush administration was forced to reverse its policy regarding
the Geneva Conventions and state that all detainees at Guantanamo and in U.S. military
custody elsewhere were now entitled to Article 3 Geneva protections.
On October 17, 2006, President Bush signed the Military Commissions Act to "facilitate
bringing to justice terrorists and other unlawful enemy combatants through full and fair
trials by military commissions." The act authorizes the president to create commissions
according to the rules set forth in Hamdan. It has been criticized for denying habeas
corpus rights to enemy combatants or aliens awaiting status determinations, and for
allowing the government to detain them indefinitely without trial. However, the act does
create a stronger legal basis for the military trials and limits the commissions' use to non-
U.S. citizens.

American Citizens Held as Enemy Combatants

The enemy combatants held at Guantanamo Bay are foreign nationals. But in April 2002,
officials at Guantanamo learned that Yaser Esam Hamdi, an enemy combatant captured
while fighting for the Taliban in Afghanistan, was actually a U.S. citizen. Upon this
discovery Hamdi was transferred to a military prison in Virginia, where he was held for

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