Critics argued that the USA could not evade its obligation to conduct competent tribunals to determine whether captives are, or are not, entitled to the protections of prisoner of war status.

Scholars at the Brookings Institution, led by Benjamin Wittes, listed the captives still held in Guantanamo in December 2008, according to whether their detention was justified by certain common allegations:[4] Al Nahdi chose to submit a written statement to his Combatant Status Review Tribunal rather than attend in person.

Al Nahdi said he had been well behaved at Guantanamo, with the exception of once throwing juice at a guard when he was upset when he learned his mother had died.

Al Nahdi chose to participate in his 2005 Administrative Review Board hearing, and the DoD published a 16 page transcript.

[7] The Military Commissions Act of 2006 mandated that Guantanamo captives were no longer entitled to access the US civil justice system, so all outstanding habeas corpus petitions were stayed.

[9] On July 17, 2008, Richard Murphy filed a "Petitioner's request for 30-day notice of removal or transfer" on behalf of al Nahdi and six other captives.

The Department of Defense had transferred some captives to countries where they were subsequently subjected to abusive treatment—even though they had active habeas corpus petitions.