Detainee Policy

After 9/11, terrorism suspects were held without charge and denied their constitutional right to go to court and question the grounds for their detention (habeas corpus). The Brennan Center was in the trenches of this fight, challenging the government’s military detention of an “enemy combatant” within the United States (Al-Marri v. Wright) and of other U.S. citizens overseas (Omar v. Harvey and Munaf v. Green). We also submitted amicus briefs in several cases involving detainees at Guantánamo Bay, Cuba. 

Although important progress has been made, much work remains. The Obama administration had argued that judicial review is not available to detainees held at the Bagram military prison in Afghanistan, and it had argued that the right to habeas corpus does not encompass a right to be released into the United States — even when the only alternative is continued detention. Moreover, the government continued to make use of military commissions that lack fundamental attributes of due process and asserts the right to hold some detainees indefinitely without charge. The Brennan Center will continue to advocate for detainee policies that comport with the Constitution and the rule of law.

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