The Emerging Law of Detentions: The Guantanamo Habeas Cases as Lawmaking

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, The Emerging Law of Detention: The Guantanamo Habeas Cases as Lawmaking.  (I’ve given the SSRN free download link; here is a short NPR piece on it with legal affairs correspondent Ari Shapiro.)

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 — running to all the extant cases.  Ben Wittes is a leading scholar at Brookings in this area and UTexas’s 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.  Rabea Benhalim is a Brookings Institution Legal Fellow in Governance Studies.

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):

Guest post from Benjamin Wittes, Robert Chesney, and Rabea Benhalim:

President Obama’s decision not to seek additional legislative authority for detentions at Guantánamo Bay, Cuba—combined with Congress’s lack of interest in the task—means 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.  Our purpose in this report is to describe in detail and analyze the courts’ work to date—and thus map the contours of the nascent law of military detention that is emerging from it.

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

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.  There 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.  And so these questions have indeed been left to the courts to answer.  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).

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.  Absent legislation, these are the rules of the road for GTMO detention (including for the many detainees whom the Post reports today 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).

Indeed, some decisions the judges are making—particularly their views regarding just who comes within the scope of the AUMF—have direct implications for activities other than GTMO detention, such as targeting decisions.  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.  We set out to develop a descriptive account of what the emerging detention jurisprudence actually entails so far.

Among other things, we found a lot of disagreement among the judges.  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 Ari Shapiro’s story about our report on NPR this morning).  But we think we make an important contribution by documenting the details and nuances of these disagreements—as well as the points of agreement among the judges—and discussing the problems that may follow from them.