148. The AUMF and the NDAA 2012 are the only domestic laws that authorize prolonged military detention without trial.164 Other US policies, however, are also applicable to the Guantánamo Bay detention facility, such as the Department of Defense (DoD) Directive on the DoD Detainee Program. The Directive specifies that prisoners of war and “unprivileged [enemy] belligerents” may be lawfully detained “until a competent authority determines that the conflict has ended or that active hostilities have ceased” and once a “safe and orderly transfer or release is practicable”, unless criminal proceedings are pending or a conviction has been issued. Civilians may also be lawfully detained for security reasons or for their protection until the reasons requiring their detention cease to exist. If convicted of a criminal offence, civilians will be released after their sentences are completed.165 The policy also provides that detainees will be “promptly informed of the reasons for their detention in a language they understand”.166 149. Prior to June 2004, Guantánamo detainees could not challenge the lawfulness of their detention. In Rasul v. Bush, the United States Supreme Court determined that detainees could challenge their detention in US federal courts.167 Subsequently, the Detainee Treatment Act (DTA) of 2005 and the Military Commissions Act (MCA) of 2006 were enacted and included provisions that prohibited courts from hearing detainees’ habeas corpus cases.168 The Supreme Court invalidated these provisions in Boumediene v. Bush in 2008 and ruled that Guantánamo detainees had a right to writs of habeas corpus under Article 1 Section 9 of the US Constitution.169 As a result, detainees are now able to challenge the lawfulness of their detention in court. c. Findings and Analysis CIA RENDITION, DETENTION AND INTERROGATION PROGRAMME 150. Shortly after the 9/11 attacks, the CIA began running a programme of extraordinary rendition170 and secret detention, where it secretly captured, detained and interrogated individuals in secret locations abroad (including reportedly at Guantánamo),171 and 164 Vladeck, “Detention after the AUMF”, ibid., p. 2196; NDAA 2012, §§ 1021-1022. Department of Defense Directive 2310.01E, op. cit., note 14, paras. 3(f), 3(m)(5). 166 Ibid., para. 3(c). 167 United States Supreme Court, Rasul v. Bush, op. cit., note 72. 168 In Section 7 of the 2006 MCA Congress amended the DTA to make explicit the elimination of habeas jurisdiction over past, present and future habeas petitions by enemy combatants. DTA, 30 December 2005, § 1005(e)(1), <https://www.icrc.org/ihlnat/a24d1cf3344e99934125673e00508142/b22319a0da00fa02c1257b8600397d29/$FILE/Detainee%20Treatment%20Act%20of %202005%20.pdf >; MCA 2006, § 7. 169 United States Supreme Court, Boumediene v. Bush, op. cit., note 73. 170 For the purpose of this report, “extraordinary rendition” is to be understood as “the transfer – without legal process – of a detainee to the custody of a foreign state for purposes of detention and interrogation”. It is to be distinguished from the concept of “rendition”, defined as the “transfer – without legal process – of a detainee (…) to the custody of a foreign government for purposes of criminal prosecution”. Globalizing Torture: CIA Secret Detention and Extraordinary Rendition (New York: Open Society Foundations, 2013), p. 13, <http://www.opensocietyfoundations.org/sites/default/files/globalizing-torture20120205.pdf>. 171 From September 2003, a number of detainees have allegedly been under CIA detention at Guantánamo and kept separately from detainees under military custody. CIA detention at Guantánamo has reportedly continued after 2006. United States Senate Select Committee on Intelligence, “Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program” (hereinafter, “Senate Study on the CIA RDI Programme”), Executive Summary, 9 December 2014, pp. 140, 161, <http://www.intelligence.senate.gov/sites/default/files/press/executive-summary_0.pdf>. 165 60