Deborah N. Pearlstein
Benjamin N. Cardozo School of Law
March 12, 2012
Cardozo Legal Studies Research Paper No. 357
More than ten years after the attacks of September 11, 2001, what progress has the United States made in resolving how to handle the detention of wartime combatants and terrorist suspects? According to Brookings scholar Ben Wittes’ latest book, Detention and Denial, little more than what had been made when the United States began transporting detainees to Guantanamo Bay in early 2002. He urges that it is time to redesign and rationalize the current system of rules the United States has for detaining terrorist suspects – whether captured by our military, intelligence, or law enforcement agents. Further, drawing on U.S. detention experiences of the past decade, he seeks to shed light on which among the branches in our federal government are institutionally suited to resolving the thorny questions of law and policy underlying the determinations of who may be detained and why. Wittes particularly targets both political branches for their irrationality and cowardice in failing to address such issues before now. It thus seems especially unfortunate that Wittes vests least hope in the capacities of the courts, one of the few institutional actors that has been regularly compelled in recent years to provide specific answers to complex questions of substantive detention powers and procedures. This review evaluates Wittes’ case, as a matter of both detention policy and structure, and explores which institutional characteristics might lead us to prefer the involvement of one branch or another in resolving detention-related questions. While concluding that the book fails to shed much new light on the great national debate over detention, the review recognizes that the book does a service nonetheless in highlighting the ongoing importance of the questions.
Number of Pages in PDF File: 23
Keywords: Detention, Guantanamo, terrorism, separation of powers, AUMF, NDAAAccepted Paper Series
Date posted: March 14, 2012
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