Offshore Detainees and the Role of Courts after Rasul v. Bush: The Underappreciated Virtues of Deferential Review

Abstract:     
In Rasul v. Bush, the Supreme Court held that federal courts have jurisdiction over habeas corpus petitions filed by detainees at the US military base at Guantanamo. But the Court was silent on what standards and procedures will apply to such petitions, and on whether habeas jurisdiction also covers detainees at other foreign locations. These two open questions are linked. In order to foster a future decision applying habeas at other military sites (for longer-term detainees), but still to assure military effectiveness in the war on terror, this article sketches a workable and restrained regime for individualized consideration of challenges to detention, building on a structure already taking initial shape in the wake of Rasul and the companion Hamdi case. Such claims would be heard in military tribunals, subject to habeas review in federal court, according to a narrow and deferential standard of review. Having the primary factfinding done by military tribunals (albeit properly insulated, neutral bodies) goes far toward honoring key military needs. Although some human rights advocates would be disappointed with a deferential standard of review, this approach carries several underappreciated advantages for protection of rights. As illustrated in immigration cases, the very fact that judicial review exists, with the risk of triggering de facto closer scrutiny in some cases, generates better internal discipline and managerial controls in the administrative system. In addition, even while deferring to military factfinding, courts would retain full authority to consider de novo the validity of the administrative procedures, and they would remain the ultimate arbiters of the substantive standards for deciding who may be detained as an enemy combatant. (This article appeared as part of a symposium issue on Legal Line Drawing Post-September 11, based on a conference held at Boston College.)

Number of Pages in PDF File: 36

JEL Classification: H11, H56, K33

Accepted Paper Series