The Emerging Law of Detention 2.0: The Guantánamo Habeas Cases as Lawmaking

Coauthored with Robert M. Chesney, Larkin Reynolds and The Harvard Law School National Security Research Committee. Brookings Institution, May 12, 2011.

In January 2010, the Governance Studies department at Brookings released a paper entitled “The Emerging Law of Detention: The Guantánamo Habeas Cases as Lawmaking.”  In that paper, two of the present authors sought to describe the enormous diversity of opinion among the lower court judges to whom the inactivity of the Supreme Court, Congress, and the executive branch had effectively delegated the task of writing the law of detention. In the year that has followed, a great deal has changed. A number of appellate decisions have given the lower court considerable guidance on questions that were seriously contested when we published the original paper. Some of the parameters of the law of detention that were altogether unsettled then have come into sharper focus as a result. And lower court judges have, to some degree, fallen into line. On other issues, by contrast, the law remains more or less as it was then, uncertain and subject to greatly divergent approaches by district judges with profoundly differing instincts. While in some areas, in other words, the judges have developed relatively clear rules, in others they continue to disagree. And, as then, the D.C. Circuit may not prove to be the final word. Its decisions may be merely interim steps on the way to Supreme Court consideration – meaning that the entire law of detention as it stands now could prove to be a kind of draft, a draft whose parameters remain sharply disputed and that might be torn up at any time.

The original paper is, in many respects, thus an out-of-date account of this draft – no longer an accurate guide to what is contested and what is at least tentatively resolved. Rather than simply produce a new edition of the paper, one that would just as quickly become obsolete, we decided to adapt it into a more dynamic document – one that we can update in real time as the law of detention emerges further and to which we can add additional sections covering issues we ignored the first time around.

The sections of this report are adapted from those of the original paper, on which they significantly expand, and we expect to add additional sections as the case law develops. In some areas, the development has been, and will continue to be, relatively rapid. In other areas, things change slowly. The goal is to provide, at all times, a reasonably up-to-date account of how the law of detention is changing and where it is heading on each of the bewildering array of questions on which individual judges and combinations of appellate judges are picking and choosing among the possible directions of the law.

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