1FOLLOWING THESEPTEMBER11TH ATTACKS, the United Statesbegan a military operation in Afghanistan on October 7,2001, targeting Al Qaeda, the terrorist network believed to beresponsible for the attacks, and the Taliban government,which sheltered Al Qaeda’s leader, Osama Bin Laden, and his follow-ers. A month after the U.S. invasion of Afghanistan, President Bushissued a Military Order for the capture and detention of those hebroadly designated as “enemy combatants.” The U.S. military base atGuantánamo Bay, Cuba, soon began to receive detainees. Manydetainees who arrived in those first days remain there today, publiclyunidentified and held virtually incommunicado, without formalcharges and with few prospects for release. Although courts haveissued several favorable decisions relating to the rights of detainees,few judges have applied international law, and the basic legal status ofthe detainees remains unresolved three years after the facility opened.This article briefly summarizes the defense of the detainees inU.S. courts and the status of those claims. The article first providesan overview of the detainees. It then reviews the litigation onbehalf of the foreign detainees that unfolded after the SupremeCourt’s decisions on detained enemy combatants in June 2004.The article also describes the government’s creation of CombatStatus Review Tribunals (CSRTs) and Annual Review Boards(ARBs), and the role of counsel in each of these legal contexts.Finally, this article reviews the work of defense counsel in the fewmilitary commission trials that commenced before a federal judgeordered all such trials suspended in November 2004.OVERVIEW OF THEDETAINEES IN GUANTÁNAMO BAYANDTHEIR LEGAL SITUATIONSINCE THE OPENING INGUANTÁNAMOBAYof Camp X-Ray, whichlater became Camp Delta, the military has not publicly releasedthe names and countries of origin of the occupants of the camp.Approximately 550 detainees from more than 40 countries are cur-rently at Guantánamo. More than 100 detainees have been released,most without charges or detention in their home countries uponreturn. Some 450 detainees remain officially unidentified as of early2005. Some have been detained for over three years without access tocounsel or the courts of any country. The U.S. government asserts thatthe detainees remain detained because of the threat of their return tohostilities and because they continue to provide useful intelligence tothe United States. The detainees are permitted only limited mail access with theoutside world—to immediate family and counsel. Initially, thedetainees could only send and receive messages through theInternational Committee of the Red Cross, which has continuous-ly, but not publicly, monitored detention conditions. There weremore than 120 “self-harm” or suicidal events by detainees during2004. Reports of torture and severe abuse of the detainees contin-ue to emerge, but the government continues to deny any seriousmistreatment of detainees at the facility. The military recentlydecided to build a more permanent facility, thus indicating itsintent to treat the detainees as long-term, perhaps lifelong,prisoners. There are now over 140 detainees whose families or friendshave taken legal action on their behalf. For those few, legal actionbegan in U.S. courts almost immediately after the first detaineearrivals. Those legal actions were unavailing until the U.S.Supreme Court reviewed a group of cases—Rasul v. Bush, Hamdiv. Rumsfeld, and Rumsfeld v. Padilla—with the common questionof the meaning and implications of enemy combatant status, asapplied to citizens within the United States and foreign nationalsdetained in Guantánamo. The Rasul decision dealt with a group offoreign detainees at Guantánamo Bay, while the Hamdi andPadilla decisions dealt with individual U.S. citizens held as enemycombatants on the U.S. mainland. Since those decisions, thegovernment released Yasar Hamdi and returned him to his nativeDefending the Detainees at Guantánamo Bayby Richard J. WilsonRichard J. Wilson is a professor of law, co-director of the Center for Human Rights andHumanitarian Law, and director of the International Human Rights Clinic at theWashington College of Law. Professor Wilson is counsel of record in one of the detaineecases, that of Omar Khadr, a Canadian citizen captured at age 15 in Afghanistan andsubsequently sent to Guantánamo in October 2002. He took the case as volunteercounsel in July 2004 on behalf of the International Human Rights Law Clinic. The Human Rights Brief is a publication of the Center for Human Rights andHumanitarian Law at American University Washington College of Law.No portion of this publication may be reprinted without the express writtenpermission of the Human Rights Brief. All correspondence, reprinting, andsubscription requests and articles submitted for publication may be sent to:The Human Rights Brief, Center for Human Rights and Humanitarian Law,Washington College of Law, American University, 4801 Massachusetts Avenue,NW, Washington, DC 20016. Telephone: 202-274-4023. Email:[email protected]. Web site: www.wcl.american.edu/hrbrief. Fax:202-274-4028. The views expressed in this publication are those of the writersand are not necessarily those of the editors, the Center, or American University.Copyright Human Rights Brief, 2005. ISSN 1533-6808. Cite as 12 No. 3 Hum. Rts. Brief.An equal opportunity, affirmative action university.Co-Editors-in-ChiefSarah Hymowitz Meghan StewartSenior Articles EditorsRoger Phillips Sheku SheikholeslamiManaging EditorLilah RosenblumPublication Editor Sara IbrahimArticles EditorsKatie Atkinson Kelly BarrettEmily Creighton Julia GraffErin Palmer Abby RichardsonPatricia Staible Claire Trickler-McNultyStaff WritersSabrina Balgamwalla Lauren BartlettMario Cava Nerina CevraTim Curry Christian De VosTejal Jesrani Heather MorrisNatalie Palomino Jen PodkulSwati Rawani Nicole TrudeauFounders BoardVanessa Allen, Gillian Brady, Michelle Donme, Gabriel Eckstein, RobertGuitteau Jr., Fernando González-Martín, Claudia Martín, Mair McCafferty,Rochus Pronk, Ayesha Qayyum, Diego Rodríguez-Pinzón, Brian Tittemore,and Shashikala WarrierAlumni CommitteeAnebi Adoga, Anne Briggs, Fernando González-Martín, Jennifer M. Hentz,Richard H. Kamm, Sarah Paoletti, Alejandro Ponce-Villacís, Amy Stern, JaimeUnderwood, and Kristi SeveranceAustralia without charges. A federal judge ordered the releaseof Jose Padilla from custody, but the