Initially, the Department of Defense (DOD) sought to try detainees as war criminals using military commissions, as opposed to courts-martial provided under the Uniform Code of Military Justice (UCMJ). Consequently, detainees began challenging their detention and designation as "enemy combatants," arguing the military commissions lacked jurisdiction and violated the Geneva Conventions. In August 2005, Commission Order No. 1 [PDF] revised and delineated commission procedures, and later that year Congress passed the Detainee Treatment Act of 2005, imposing jurisdictional limitations on the federal courts in reviewing the military commissions. In June 2006, however, the US Supreme Court ruled in Hamdan v. Rumsfeld that the government lacked the authority to establish the commissions because they failed to comply with Article 36 of the UMCJ by unjustifiably deviating from the rules for courts-martial. The court also found that the commissions failed to comply with Article 3 of the Geneva Conventions.
According to JURIST Special Guest Columnist Jonathan Hafetz, Hamdan also reveals the tension between maintaining standards of conduct and expanding executive power: "By striking down the President's unprecedented system for trying terrorist suspects, the Supreme Court exposed the military commissions for what they are: the appearance, but not the reality, of a lawful process. Just as the executive cannot disregard the nation's Constitution and laws in trying alleged terrorists, it cannot cast aside those legal protections by detaining them indefinitely with even fewer safeguards to prove their innocence."
Congress responded to the court's decision in Hamdan by quickly passing the Military Commissions Act of 2006 (MCA), which established the current commissions system and removed jurisdiction from every "court, justice, or judge ... to hear or consider an application for writ of habeas corpus filed by ... an alien ... detained as an enemy combatant." However, in Boumediene v. Bush, the US Supreme Court overturned MCA provisions stripping federal courts of habeas corpus jurisdiction, finding that Guantanamo detainees must have habeas corpus rights under the US Constitution. The MCA was again limited in court in October 2008, when the US District Court for the District of Columbia adopted a definition of "enemy combatant" provided in a 2004 Order Establishing Combatant Status Review Tribunal [PDF]. Under the more stringent standards, detainees would have to directly support hostilities against the US or its allies to qualify as "enemy combatants."
Finally, in March 2009, the US Department of Justice (DOJ) dropped the term "enemy combatant" from its legal lexicon and established a new criterion for detention that did not rely on the Authorization for the Use of Military Force passed by Congress in September 2001. Instead, the new criteria [PDF] "draws on international laws of war to inform the statuary authority conferred by Congress." Although the DOD released new standards [PDF] for the commissions in April 2010, and appointed retired Navy Vice Adm. Bruce MacDonald as convening authority, controversy over the proper venue for trying detainees persists. In June 2012, the US Supreme Court had the opportunity to hear any of seven cases related to Guantanamo detainees and their continued detention. The Court denied certiorari in all seven cases, preserving the decisions of the US Court of Appeals for the District of Columbia Circuit.
It was reported in January 2011 that the Obama administration planned to increase use of the controversial system. Although the Obama administration departed from the use of the term "enemy combatant," JURIST Contributing Editor Jordan Paust has suggested that the administration could still run afoul of human rights laws by utilizing the commissions to prosecute aliens:
More significantly, any tribunal that would only prosecute aliens would necessarily violate bilateral treaties with the state of nationality of the detainees that require equality of treatment, create a "denial of justice" for aliens under customary international law, and violate human rights law (treaty-based and customary) that requires "equality before the law" and "equal protection of the law" as well as the prohibition of national origin discrimination.Concerns have been raised regarding the efficacy of the legal processes at Guantanamo Bay. JURIST Guest Columnist J. Wells Dixon has argued that a systematic dysfunction exists within the detention facility's bureaucracy:
The military commission system was designed to serve only one purpose: to manufacture predetermined guilty verdicts for Muslim men who have been dehumanized and rendered unworthy of the protections provided by the US Constitution and laws, including international law. After nearly a decade of false starts, the commissions are notable only for convicting a chauffeur, a child and a video propagandist, none of whom is responsible for the attacks of September 11, 2001. Who will be next, a Taliban cook, or perhaps an al Qaeda gardener? The consistent missteps and false starts at Guantánamo raise the question of what President Barack Obama is trying to achieve there at this point Guantánamo is a fiasco by any measure.
In December 2011, Navy Rear Adm. David Woods, commander of the Joint Task Force Guantanamo (JTF-GTMO) proposed a policy which would require military personnel to review all legal correspondence between detainees suspected of involvement in the 9/11 terrorist attacks. Following the proposal, Chief Defense Counsel for Guantanamo Bay war crimes tribunals, Colonel J.P. Colwell, ordered attorneys under his command to not comply with the review rule in January 2012. The rule was officially challenged by suspected 9/11 conspirator Ali Abdul Aziz Ali in February 2012, who claimed that the rule violated attorney-client privilege. Chief Judge James Pohl ruled on February 20, 2012 that the content of attorney-client mail inspected at Guantanamo Bay is confidential and may not be released. Woods also instituted a new policy of conducting a "plain-view review" of all written prisoner mail in January 2012, which did not include correspondence marked as attorney-client privileged.