In the aftermath of September 11th, U.S. policies for detention of so-called "enemy combatants" or "unprivileged enemy belligerents," both domestically and abroad, have raised serious constitutional concerns. These have included attempts to detain individuals without providing a meaningful opportunity to challenge the lawfulness of the detention, stripping constitutional habeas corpus rights in violation of the Constitution's Suspension Clause, and claiming unreviewable executive authority to detain individuals indefinitely without charge.

Too often, detention policies in the aftermath of September 11th have provided for unchecked authority for the executive branch without respect for the separation of powers doctrine. Congress and the courts largely were unable or unwilling to provide a meaningful check on the executive branch. The role of the courts has been restored to some degree, particularly with the Supreme Court's 2008 decision in the Boumediene case which recognized the constitutional habeas rights of Guantanamo detainees. The Constitution Project has been active in issuing a series of reports, filing amicus briefs, and conducting policy advocacy to assure that the proper balance of power among the branches is restored and that detention policies protect constitutional rights. This work has included:

• Working to restore the habeas rights of the Guantanamo detainees;
• Opposing policies of indefinite detention without charge;
• Demonstrating how federal courts are capably handling the Guantanamo habeas cases;
• Challenging the overbroad application of laws prohibiting material support for designated terrorist organizations; and
• Advocating release from Guantanamo of the Uighurs, Chinese Muslims who have long been recognized not to be enemy combatants.

Recent Work and News

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