Abstract

http://ssrn.com/abstract=1725533
 
 

Citations (1)



 
 

Footnotes (673)



 


 



Who May Be Held? Military Detention Through the Habeas Lens


Robert Chesney


University of Texas School of Law

December 14, 2010

Boston College Law Review, Vol. 52, No. 3, p. 769, 2011
U of Texas Law, Public Law Research Paper No. 184

Abstract:     
We lack consensus regarding who lawfully may be held in military custody in the contexts that matter most to U.S. national security today - i.e., counter-terrorism and counterinsurgency. More to the point, federal judges lack consensus on this question. They have grappled with it periodically since 2002, and for the past three years have dealt with it continually in connection with the flood of habeas corpus litigation arising out of Guantanamo in the aftermath of the Supreme Court's 2008 decision in Boumediene v. Bush. Unfortunately, the resulting detention jurisprudence is shot through with disagreement on points large and small, leaving the precise boundaries of the government's detention authority unclear.

Part I opens with an abstract typology of criteria and constraints that might be used to define a detention standard at the individual level. Part II then provides further context with a thumbnail sketch of two overarching disagreements that greatly complicate the detention debate: we do not agree as to which bodies of law govern this question, nor do we agree as to what each particular body of law actually has to say, if anything, regarding individualized detention criteria even if that body is applicable. Part III follows with a survey of about two dozen habeas decisions between 2002 and 2010 in which courts grapple with the individualized-scope issue, using the typology from Part I as a device to facilitate comparison of the decisions.

With respect to affirmative predicates for detention, the survey concludes that something close to consensus has emerged regarding the use of group membership as a sufficient condition for detention, but that there may yet be considerable disagreement as to what counts as membership in this context. The survey also notes that the jury remains out with respect to whether non-member support for certain groups may also function as a sufficient condition for detention. With respect to variables that can function as constraints on detention authority, the survey shows that the courts have developed consensus against employing certain constraints (such as forbidding the use of detention as to citizens, or in circumstances where the government might have a criminal prosecution alternative). On the other hand, the question of geographic constraints on the scope of detention authority remains unsettled.

Part IV considers the ramifications of this descriptive account. I open by arguing that the lingering uncertainty matters a great deal both in terms of the remaining Guantanamo cases and in terms of other military activities that take place in the shadow of the habeas caselaw. I then consider the arguments for and against legislation to reduce the uncertainty, finding that the case for legislation is difficult but ultimately persuasive in the abstract (note that this paper is not a pitch for adopting some particular legislative proposal). Finally, I explain that the detention litigation illustrates three larger phenomena: (i) the dynamic relationship between law and strategic context; (ii) the increasing significance of domestic courts for purposes of developing international humanitarian law, and (iii) the increasing extent to which domestic law challenges both international humanitarian law and international human rights law for primacy when it comes to the legal regulation of national security-related activities.

Number of Pages in PDF File: 102

Accepted Paper Series


Download This Paper

Date posted: December 16, 2010 ; Last revised: May 28, 2011

Suggested Citation

Chesney, Robert, Who May Be Held? Military Detention Through the Habeas Lens (December 14, 2010). Boston College Law Review, Vol. 52, No. 3, p. 769, 2011; U of Texas Law, Public Law Research Paper No. 184. Available at SSRN: http://ssrn.com/abstract=1725533

Contact Information

Robert Chesney (Contact Author)
University of Texas School of Law ( email )
727 East Dean Keeton Street
Austin, TX 78705
United States
Feedback to SSRN


Paper statistics
Abstract Views: 2,564
Downloads: 410
Download Rank: 39,291
Citations:  1
Footnotes:  673

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.500 seconds