Detention Debates

Michigan Law Review is out with its Annual Survey of Books in the law, and while the self-promotion is awkward at the least, it feels a bit more in the interest of full disclosure (given what I’ve blogged about here in the past) to note that the issue includes my review of Ben Wittes’ latest book, Detention and Denial. A version of the review is accessible without subscription here. As I note in the review, a lot has happened on the detention front since Ben’s book was published – centrally including the whole debate over the passage of the NDAA, new federal legislation that had aimed (and ultimately failed) to do what Ben advocates in his book: detail the scope and nature of U.S. detention authority in war and counterterrorism operations. At the same time, there is little sign that Congress (or any of the other branches) will be out of the detention business entirely anytime soon. So for those who follow these debates, and those thinking through what detention policy should be after the United States hands its Afghanistan detention operations over to the Afghans in September of this year (the MOU is here), I summarize and critique the policy arguments Ben makes in favor of broad forward-going detention authority, and in favor of even more vigorous involvement by the legislative branch.