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The Emerging Law of Detention: The Guantanamo Cases as Lawmaking


Benjamin Wittes


Brookings Institution

Robert Chesney


University of Texas School of Law

Rabea Benhalim


Brookings Institution

January 22, 2010

Governance Studies at Brookings, January 22, 2010
U of Texas Law, Public Law Research Paper No. 165

Abstract:     
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. We pay particular attention to the courts’ decisions relating to: the substantive grounds for detention (including whether a once-adequate relationship with enemy forces may be vitiated); the nature and allocation of the burden of proof (including whether the burden actually varies over time); government requests for presumptions that its evidence is authentic and accurate; the admissibility and weight of hearsay evidence; the extent to which interrogation statements may be admitted or given weight in the face of torture, coercion, or involuntariness arguments; and the relevance of the “mosaic” theory.

We find a considerable amount of disagreement among the judges regarding most of these matters — enough to suggest that in at least some instances the merits might well have been resolved differently had the detainee’s case been heard by a different judge.

The appellate process may eventually impose greater uniformity. In the meantime, the lack of clarity regarding such important matters as the scope of the government’s detention power and the circumstances in which an interrogation statement can be used to justify a detention presents problems from the perspectives of both the detainees and the government. Neither can be sure of the rules of the road in the ongoing litigation, and the prospect that allocation of a case to a particular judge may prove dispositive on the merits can cut in either direction. Because it remains unclear how far the courts’ jurisdiction extends, moreover, nobody knows at this stage precisely how many cases these rules will ultimately govern and where else in the world they will have a direct impact. More fundamentally, because the courts in these cases are defining not merely the rules for habeas review but also the substantive law of detention itself, they have implications far beyond the litigation context. The rules the judges craft could have profound implications for decisions in the field concerning whether to initially detain, or even target, a given person, whether to maintain a detention after an initial screening, whether to employ certain lawful but coercive interrogation methods, and so forth.

Number of Pages in PDF File: 109

Keywords: Guantanamo, Habeas, Terrorism, Mosaic, Voluntariness, Hearsay, Detention

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Date posted: January 27, 2010  

Suggested Citation

Wittes, Benjamin and Chesney, Robert and Benhalim, Rabea, The Emerging Law of Detention: The Guantanamo Cases as Lawmaking (January 22, 2010). Governance Studies at Brookings, January 22, 2010; U of Texas Law, Public Law Research Paper No. 165. Available at SSRN: http://ssrn.com/abstract=1540601

Contact Information

Benjamin Wittes
Brookings Institution ( email )
1775 Massachusetts Ave, NW
Washington, DC 20036
United States
Robert Chesney (Contact Author)
University of Texas School of Law ( email )
727 East Dean Keeton Street
Austin, TX 78705
United States
Rabea Benhalim
Brookings Institution ( email )
1775 Massachusetts Ave, NW
Washington, DC 20036
United States
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