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59 3 The Emerging Law of Detention Its serial failures of candor with respect to detention unfortunately cannot relieve the United States of the burden of detention . Consequently, they also will not relieve it of the need for various systems of rules, norms, and procedures to handle the various types of people that U.S. forces and their proxies will end up capturing. The political system’s refusal to engage seriously over the question simply delegates the foundational decisions regarding the contours of those systems to other actors. We should face squarely who those actors are. When the United States turns tens of thousands of detainees over to the Iraqi and Afghan governments, it delegates to those countries the power to define the permissible boundaries of U.S. national security detentions . It relinquishes control over the conditions of confinement, and it also relinquishes control over the criteria for release. There are many excellent reasons to cede authority over time to those governments; they will, after all, eventually have to take responsibility for their own affairs. Fear of defining the rules ourselves, however, is not one of those excellent reasons. This chapter is adapted from “The Emerging Law of Detention: The Guantánamo Habeas Cases as Lawmaking,” a paper that I published with Robert Chesney and Rabea Benhalim on the Brookings Institution website in January 2010. Much of the research and some of the text reflect their work. The original paper is available at chesney/0122_guantanamo_wittes_chesney.pdf. 03-0491-1 ch3.indd 59 10/14/10 6:16 PM 60   Detention and Denial Closer to home, at Guantánamo, our refusal to take responsibility for designing a detention system empowers a different body: the U.S. courts. As discussed previously, the decision not to seek a legislatively defined detention regime does not mean that the Obama administration has abandoned the option of noncriminal detention of terrorist suspects. To the contrary, the administration specifically intends to continue holding around fifty suspects without trial, and that number does not include dozens of Yemeni suspects whom it would repatriate either immediately or eventually were it not for the ban on repatriations to Yemen that it has slapped on itself. Like the fifty other suspects, those people aren’t going anywhere anytime soon. Nor does the decision not to seek legislation mean that there exists no process to define the rules governing detentions. What the decision does mean is that for good or ill, the rules will be written by judges through the common-law process of litigating the habeas corpus cases of the detainees still held at Guantánamo. This state of affairs puts a premium on the Guantánamo habeas cases not merely as a means of deciding the fate of the individuals in question but as a lawmaking exercise with broad implications for the future. The law established in these cases will in all likelihood govern not merely the Guantánamo detentions but also any other detentions around the world over which U.S. courts eventually acquire habeas jurisdiction. And while the courts currently seem to have little appetite for habeas beyond Guantánamo , that may not last indefinitely. What’s more, to the extent that these cases establish substantive and procedural rules governing the application of law-of-war detention powers in general, they could end up affecting detentions far beyond those immediately supervised by the federal courts. After all, when the federal courts proclaim that the Authorization for Use of Military Force (AUMF) authorizes detention in situation X but not in situation Y, that rule of law presumably defines the government’s authority whether or not the detainee in question has access to habeas 03-0491-1 ch3.indd 60 10/14/10 6:16 PM The Emerging Law of Detention   61 courts. Presumably that rule must guide detention operations that aspire to remain within the law whether or not habeas judges are looking over the shoulders of military lawyers. University of Texas legal scholar Robert Chesney has aptly dubbed this effect the “Mark Martins Problem.” General Mark Martins took over detention operations at Bagram after helping to run the Obama administration’s detention policy task force. In considering a habeas opinion or a judicial approach to a particular problem, Chesney—who also served on the task force—often poses the question of what message it would send to Martins and the people that he commands. Does it help to clarify...


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