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Constitutional Due Process for Enemy Combatants under the Military Commissions Act of 2006

The Constitution protects against unjustified detentions by the federal government through the rights of ‘habeas corpus’ and ‘due process.’ However, a federal law passed in 2006 strips the right of habeas corpus, and essentially strips the right of due process, for detainees determined to be foreign enemy combatants held at Guantanamo Bay, Cuba. The law is the Military Commissions Act of 2006 and is the subject of several court cases, including Al Odah v. United States which was heard by the Supreme Court in December, 2007.

The stated purpose of the Military Commissions Act of 2006 is “To authorize trial by military commission for violations of the law of war, and for other purposes.” It was passed as part of the multi-faceted effort to combat the war on terror after the attacks of September 11th, 2001. Whether detainees have the right to habeas corpus or due process has been litigated in the courts because there is controversy about what type of trial accused persons are entitled to under the constitution.

Habeas Corpus

The writ of habeas corpus is one of the important safeguards of individual freedom found in the Constitution and the Bill of Rights. A “writ” of habeas corpus is the way in which a prisoner asks a judge to require that those holding him/her prisoner justify the incarceration. Without habeas corpus, there is no way for a person who is being wrongfully detained to challenge his detention, even if the detention has gone on for years. In Hamdi v. Rumsfeld, the Supreme Court ruled that US citizens cannot be denied the right to petition for habeas corpus. The Military Commissions Act, however, denies US courts the ability to hear a habeas corpus appeal from foreign detainees at Guantanamo Bay. Rather, alien detainees determined to be “enemy combatants” will be tried by separate military commissions.

Due Process

The 5th Amendment to the Constitution prohibits the federal government from depriving any person of life, liberty, or property, without due process of law. Due process generally means that a defendant must be given notice of the charges against them and the opportunity to be heard at a fair and impartial hearing. The Military Commissions Act provides each detainee with a hearing but severely limits the incriminating evidence that detainees may see, who a detainee may call as a witness and lowers the level of proof required to convict. The Supreme Court in Al Odah may determine whether these limited rights qualify as due process.


No American citizen captured anywhere, or any person caught in the US, is imprisoned at Guantanamo Bay. When John Walker Lindh, the famous “American Taliban”, was captured in Afghanistan fighting with the Taliban his status as an American citizen required the military to bring him to the United States. Yaser Esam Hamdi was an enemy combatant being held in Guantanamo Bay, Cuba. When the military learned he had dual Saudi Arabian and American citizenship he was transported to a military jail in the United States.

The federal government has argued that the Military Commissions Act is constitutional because constitutional protections to non-citizens only exist where a US court has jurisdiction to enforce them and under current law no federal court has jurisdiction over Guantanamo Bay. This means that the detainees in Guantanamo Bay are subject to confinement until the government decides to release them. As the war on terror is ongoing their continued detention may be indefinite.

The issue before the Supreme Court is does the Constitution treat people differently based on who they are and where they are. The Supreme Court has already determined that the Constitution grants rights to US citizens anywhere they may be. If the Court finds for Al Odah the Court may create the new rule that the Constitution also acts as a constraint on the US government irrespective of a person’s nationality or location.