The Emerging Law of Detention: The Guantánamo Habeas Cases as Lawmaking

Brookings Institution, January 22, 2010

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 must write the rules governing military detention of terrorist suspects. As the United States reaches the president’s self-imposed January 22, 2010 deadline for Guantanamo’s closure with the base still holding nearly 200 detainees, the common-law process of litigating their habeas corpus lawsuits has emerged as the chief legislative mechanism for doing so.


It is hard to overstate the resulting significance of these cases. They are more than a means to decide the fate of the individuals in question. They are also the vehicle for an unprecedented wartime law-making exercise with broad implications for the future. The law established in these cases will in all likelihood govern not merely the Guantánamo detentions themselves but any other detentions around the world over which American courts acquire habeas jurisdiction. 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 impacting detentions far beyond those immediately supervised by the federal courts. They might, in fact, impact superficially-unrelated military activities, such as the planning of operations, the selection of interrogation methods, or even the decision to target individuals with lethal force.

This peculiar delegation of a major legislative project to the federal courts arose because of the Supreme Court’s 2008 decision that the courts have jurisdiction to hear Guantánamo habeas cases. While the justices insisted on a role for the courts, they expressly refused to define the contours of either the government’s detention authority or the procedures associated with the challenges it authorized. All of these questions they left to the lower courts to address in the first instance. Combined with the passivity of the political branches in the wake of the high court’s decision, this move placed an astonishing raft of difficult questions in the hands of the federal district court judges in Washington and the appellate judges who review their work.

To read the full paper, click here.

Comments are closed.