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 s
hort 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.