Under an Order from the US Department of Defense on 7 July 2004, the Combatant Status Review Tribunals were implemented so that detainees held ion Guantanamo Bay designated as 'Enemy Combatants' could contest this designation. However, these were private hearings, in which detainees were not granted access to independent lawyers. Instead each detainee was assigned a military officer who would be afforded the opportunity to 'review any reasonably available information in possession of the Department of Defense that may be relevant to the detainee's designation as enemy combatant'. The Tribunals were made up of 'three neutral commissioned officers of the US Armed Forces ... none of whom was involved in the apprehension, detention, interrogation, or previous determination of status of the detainee'. One of the three had to be a Judge Advocate. Significantly, the Tribunals were 'not bound by the rules of evidence such as would apply in a court of law. Instead, the Tribunal shall be free to consider any information in deems relevant and helpful to a resolution'. This meant that information obtained through torture was permissible. Redacted transcripts of the Tribunals are posted on the US Department of Defense website. According to Reprieve, by April 2011, 535 men had been reviewed under the CSRTs, and 495 had been designated enemy combatants (see Reprieve's Guantanamo Statistics).

The Detainee Treatment Act was passed on 30 December 2005. On the one hand this prohibited the use of cruel, inhuman or degrading treatment of prisoners, in accordance with the Fifth, Eight and Fourteenth Amendments to the US Constitution, and as defined in the US Reservations, Declarations, and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment. On the other hand it severely limited the rights of Guantanamo detainees to seek judicial review. It did this by stripping the US courts of jurisdiction over habeas corpus petitions filed on behalf of Guantanamo detainees, and vesting exclusive review of final decisions of CSRTs and military commissions in the Washington DC Circuit Court.

The term 'Enhanced Interrogation Techniques' is a euphemism for torture techniques that were used by the CIA against so-called 'High Value Detainees'. The CIA sought and was granted approval for these from the US Department of Justice's Office of Legal Counsel. In 2002, the CIA's Office of General Counsel wrote to the Office of Legal Counsel (OLC) of the US Justice Department, requesting permission for the use of Enhanced Interrogation Techniques under the CIA's Counterterrorist Program. These were intended to provide a number of measures that went beyond the 'Standard Interrogation Techniques' (SITs), already approved for use by the CIA. The SITs included sleep deprivation up to 72 hours, continual use of light or darkness in a cell, loud music, and white noise. The rationale for the EITs was that they would be effective in securing intelligence from detainees that were unresponsive to the SITs, thereby increasing the capacity of the US to prevent future terrorist attacks. The EITs were intended for use against the first so-called 'High Value Detainee', Abu Zubaydah, who the CIA argued was resistant to the standard techniques. Jay Bybee of the Office of Legal Counsel approved all the proposed techniques in a memo on 1 August 2002 to John Rizzo, Acting General Counsel of the Central Intelligence Agency.

The approved 'EITs' were:

1) the attention grasp

2) walling

3) the facial hold

4) the facial insult or slap

5) cramped confinement

6) insects placed in confinement box

7) wall standing

8) stress positions

9) prolonged sleep deprivation

10) the waterboard.

In 2005, the CIA sought retroactive approval for expanded EITs that it was already using, and these were approved by a further memo signed by Steven Bradbury from the OLC. This was despite the fact that the CIA Inspector General had carried out an investigation into the use of the EITs in 2004, and had raised considerable doubt over their effectiveness, as well as expressing concern that they violate US and international law, and that CIA personnel may be at risk of prosecution for their use. His report was declassified in 2009.

Habeas Corpus is a common law legal procedure which empowers a court to command those holding an individual in custody to show in court why the liberty of that person is being denied. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another's detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error. A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody. See: http://www.lectlaw.com/def/h001.htm

On June 12, 2008, in an historic decision, the US Supreme Court held in Boumediene v. Bush that non-citizen 'enemy combatants' in Guantanamo Bay had the right to file a writ of habeas corpus. The Detainee Treatment Act which purported to provide a substitute procedure to the habeas corpus writ was not an effective or adequate substitute and consequently the suspension of the habeas corpus writ by the Military Commissions Act 2006, para. 7, was unconstitutional. This case opened the way for hundreds of detainees to petition their detention in a federal court.

However, habeas corpus rights have not been extended to detainees in Bagram airbase. On 21 May 2010, the US District Court of Appeals in Washington DC ruled that three prisoners who are being held by the United States at Bagram Air Base in Afghanistan could not challenge their detention in U.S. courts. The appeals court ruled that the Bagram base and its prison are on the "sovereign territory" of another government and beyond the jurisdiction of U.S. courts. See: http://www.aclu.org/national-security/aclu-files-habeas-corpus-petitions-behalf-four-bagram-detainees

The Human Resource Exploitation programme was a controversial programme introduced by the CIA in the 1980s for the training of foreign liaison officers. In many respects the HRE should be seen as a precursor to the Enhanced Interrogation Programme. The Human Resource Exploitation manual was used in conjunction with another CIA training manual entitled KUBARK for the training under the HRE programme. Both manuals advocated practices that constitute Cruel, Inhuman and Degrading Treatment and Torture. There are striking similarities between the methods advocated by the HRE programme and the EITs. HRE methods included time, space and sensory deprivation, solitary confinement, confinement in small boxes, and stress positions. In the HRE manual, these are acknowledged to be forms of torture. Following controversy around the HRE programme, the CIA outlawed torture, on the grounds that it was both illegal and ineffective. The CIA Inspector General, in his 2004 investigation into Enhanced Interrogation Techniques, recounts the history of the HRE programme and the subsequent banning of torture by the CIA. One of his aims therefore, was to look at whether there were good grounds for the introduction of the EITs, which really constituted a re-introduction of methods previously deemed to have been neither legal nor effective.

So-called 'High Value Detainees' are those terror suspects that US intelligence agencies and security forces consider to have been in the inner circle of al-Qa'ida 'occupying some of the most important positions in that organisation'. According to a briefing by the Office of the Director of National Intelligence, they are considered to 'hold information that simply cannot be obtained from any other source'. See http://www.defense.gov/pdf/thehighvaluedetaineeprogram2.pdf.

The Military Commissions Act was passed on 17 October 2006. It stripped the US courts of jurisdiction over the appeals in relation to any aspect of detention or treatment of all non-citizen detainees determined to be 'enemy combatants' or 'awaiting such determination'. The MCA also ratified the severely limited Combatant Status Review Tribunals review process, established under the Detainee Treatment Act, as a substitute for habeas corpus. President Bush announced that the MCA would enable the CIA's rendition programme to continue.

The Office of Legal Counsel provides authoritative legal advice to the President of the US. It drafts the legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the Executive Branch, and offices within the Department of Justice. It also provides legal advice on all Constitutional questions. It has played a key role in rendition and secret detention, advising the President, the CIA and the Department of Defense on the legality of detention, rendition and torture. It has frequently facilitated the legitimisation of practices that violate international law in relation to the treatment of detainees captured in the 'War on Terror'.

The Enhanced Interrogation Techniques (EITs) were based on the Survival, Evasion, Resistance and Escape training that was used to train US military personnel in the event that they are captured by hostile forces. The SERE training included being waterboarded. As the CIA Inspector General noted in his 2004 investigation into the EITs, the use of the water board had been abandoned in all US military training except among the Navy 'because of its dramatic effect on the students who were subjects'. Yet in devising the EITs, psychologists and psychotherapy academics had advised the CIA that there were no long term effects resulting from SERE training, including from the water board which was considered 'the most taxing technique'. For a discussion of the flaws of comparing a training programme for US military training with the actual use of torture, in terms of the effects on victims, see Ruth Blakeley, 'Dirty Hands Clean Conscience: The CIA, Detention, 'Enhanced Interrogation', and the Outsourcing of Torture', in Journal of Human Rights, December 2011.

A writ of certiorari is a writ seeking a judicial review by a superior court of a judgement made by a lower court in cases where an appeal may not necessarily follow. The higher court usually has to give permission to carry out the review as being a matter suitable to be heard by that court. If the writ is denied by the higher court, it refuses to consider the review and the judgement of the lower court stands. If the writ is granted, the higher court will remand the case back to the lower court for further consideration or, exceptionally, decide the case itself.

In a number of the habeas corpus cases on behalf of Guantanamo detainees, the US Supreme Court has granted writs of certiorari, has reviewed the cases, and has overturned some of the judgements of the Circuit Court for the District of Columbia. For example, in 2003, the Washington D.C. Circuit Court of Appeals had affirmed the dismissal of three habeas corpus petitions (Boumediene v. Bush, Rasul v. Bush and Al Odah v. United States) by the US District Court, the Supreme Court granted a writ of certiorari. It consolidated the appeals under Rasul v. Bush, heard the case, and ruled in June 2004 that the 600 Guantanamo detainees had a right of access to the federal courts, via habeas corpus and otherwise, to challenge their detention and conditions of confinement.