{"id":218908,"date":"2010-01-22T19:55:26","date_gmt":"2010-01-23T00:55:26","guid":{"rendered":"http:\/\/opiniojuris.org\/?p=11029"},"modified":"2010-01-22T19:55:26","modified_gmt":"2010-01-23T00:55:26","slug":"the-emerging-law-of-detentions-the-guantanamo-habeas-cases-as-lawmaking","status":"publish","type":"post","link":"https:\/\/mereja.media\/index\/218908","title":{"rendered":"The Emerging Law of Detentions: The Guantanamo Habeas Cases as Lawmaking"},"content":{"rendered":"

by Kenneth Anderson <\/em><\/strong><\/p>\n

Anyone doing serious work on detention, Guantanamo, war on terror, any of these areas, will want to read an extraordinary new study just out from the Brookings Institution by Benjamin Wittes, Robert Chesney, and Rabea Benhalim,\u00a0The Emerging Law of Detention: The Guantanamo Habeas Cases as Lawmaking<\/a>. \u00a0(I\u2019ve given the SSRN free download link; here is a short NPR piece on it with legal affairs correspondent Ari Shapiro<\/a>.)<\/p>\n

No matter what your particular legal viewpoint about detention and Guantanamo, I believe this report will be required reading because of the sheer breadth and depth of its analysis \u2014 running to all the extant cases. \u00a0Ben Wittes is a leading scholar at Brookings in this area and UTexas\u2019s Bobby Chesney is both a leading scholar, and also someone who took on Most Thankless But Important Job in conducting a major review for the Obama administration on detention policy. \u00a0Rabea Benhalim is a Brookings Institution Legal Fellow in Governance Studies.<\/p>\n

I went to Ben and Bobby, and asked if they would give me a guest post on the background to this report and their purposes in researching and writing it, and I would like to thank them for the short response below (cross posted to Volokh):<\/p>\n

Guest post from Benjamin Wittes, Robert Chesney, and Rabea Benhalim:<\/em><\/p>\n

\n

President Obama\u2019s decision not to seek additional legislative authority for detentions at Guant\u00e1namo Bay, Cuba\u2014combined with Congress\u2019s lack of interest in the task\u2014means that, for good or for ill, judges through their exercise of habeas jurisdiction are writing the substantive and procedural rules governing military detention of terrorist suspects. \u00a0Our purpose in this report is to describe in detail and analyze the courts\u2019 work to date\u2014and thus map the contours of the nascent law of military detention that is emerging from\u00a0it.<\/span><\/p>\n

Boumediene was interesting and important as much for what it did not do as for what it did.\u00a0 For example, though the issue was briefed, the Court chose\u00a0not<\/em> to weigh in on the precise nature and scope of the detention power being exercised at Guantanamo.\u00a0 Did it apply only to some subset of the members of al Qaeda, the Taliban, or their co-belligerents?\u00a0 To all members?\u00a0 What does membership mean in that context anyway?\u00a0 What about important but independent supporters?\u00a0 What is the best reading of IHL on these matters, and does IHL actually enter in to the calculus? \u00a0What role might the direct participation in hostilities standard play?<\/p>\n

And perhaps most important, though the Court had a few things to say about the required procedural features of habeas review, it explicitly left it to the lower courts to sketch the details regarding most of the pertinent evidentiary and procedural rules. \u00a0There were some initial calls for legislation to address these questions, but as we saw in 2009 there proved to be little appetite for this on either end of Pennsylvania Avenue.\u00a0 And so these questions have indeed been left to the courts to answer.\u00a0 Over the past year, the judges of the district court in DC have been doing just that, producing a number of merits decisions to this point (often favoring the detainee).<\/p>\n

Those merits decisions obviously are quite important, but Ben, Rabea, and I are interested just as much if not more so in the substantive and procedural rules that the courts are creating (or at least trying to create) along the way.\u00a0 Absent legislation, these are the rules of the road for GTMO detention (including for the many detainees whom the\u00a0Post reports today<\/a> will continue to be held under color of the AUMF), as well as for any detainees in other locations as to which the federal courts similarly extend habeas jurisdiction (whether and to what extent such jurisdiction applies to our detention operations in Afghanistan, for example, is a question currently pending in the D.C. Circuit).<\/p>\n

Indeed, some decisions the judges are making\u2014particularly their views regarding just who comes within the scope of the AUMF\u2014have direct implications for activities other than GTMO detention, such as targeting decisions.\u00a0 Quite a lot turns on them, and yet there was relatively little coverage of the growing body of caselaw aside from the ultimate merits determinations. \u00a0We set out to develop a descriptive account of what the emerging detention jurisprudence actually entails so\u00a0far.<\/p>\n

Among other things, we found a lot of disagreement among the judges.\u00a0 That observation is not original with us; in fact, more than one of the judges involved in these cases has lamented this fact publicly (see, e.g., the quotes from Judge Lamberth in\u00a0Ari Shapiro\u2019s story<\/a> about our report on NPR this morning).\u00a0 But we think we make an important contribution by documenting the details and nuances of these disagreements\u2014as well as the points of agreement among the judges\u2014and discussing the problems that may follow from\u00a0them.<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

by Kenneth Anderson Anyone doing serious work on detention, Guantanamo, war on terror, any of these areas, will want to read an extraordinary new study just out from the Brookings Institution by Benjamin Wittes, Robert Chesney, and Rabea Benhalim,\u00a0The Emerging Law of Detention: The Guantanamo Habeas Cases as Lawmaking. \u00a0(I\u2019ve given the SSRN free download […]<\/p>\n","protected":false},"author":4222,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":["post-218908","post","type-post","status-publish","format-standard","hentry","category-news"],"_links":{"self":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/218908","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/users\/4222"}],"replies":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/comments?post=218908"}],"version-history":[{"count":0,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/218908\/revisions"}],"wp:attachment":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/media?parent=218908"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/categories?post=218908"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/tags?post=218908"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}