Process and Substance in the War on Terror

Abstract

Legal theorists have long debated the relationship between substantive and procedural law. This Article examines this relationship in the context of the “war on terror.” The most controversial programs in the “war on terror” involve profound infringements of individual rights — torture and other forms of cruel treatment, imprisonment, deportation, scrutiny of private phone calls and personal records. And yet six years after the attacks of September 11, 2001, most of the court decisions in cases challenging these policies have not directly addressed substantive rights claims. Instead, the court decisions have almost all been about process: whether particular courts have jurisdiction to hear the cases; whether the proper branch of government has made the determination of policy; whether particular plaintiffs have standing to challenge the policy; whether evidence is protected from discovery by the state secrets privilege; and so forth. These process-focused decisions have significant implications for substantive rights, but the relation between substance and procedure in these cases has received little attention. To fill this gap in our understanding of some of the most important cases of our time, the Article provides a descriptive and normative framework for examining the interconnection between substance and process. While this framework is developed in the context of the “war on terror” cases, it is relevant to and engages with broader debates about the relationship between substantive and procedural law.

Keywords: procedure, War on Terror