Decisions Detained: The Courts’ Embrace of Complexity in Guantánamo-Related Litigation
38 Pages Posted: 4 Mar 2010 Last revised: 20 Jan 2011
Date Written: March 1, 2010
This Article explores the judicial embrace of complexity in the context of Guantánamo-related litigation. First, the Article sets out a conception of war as defined by the three limiting factors of time, space, and means and the conceptual challenge to each that a war against terrorism has posed. Second, the Article examines a number of key judicial decisions implicating post-9/11 detention at Guantánamo to reveal how courts have shied away from delving too deeply into the first two factors while concentrating on the third. Next, the Article suggests institutional reasons for that emphasis: in particular, the avoidance of issues potentially considered political questions, and the evasion of clear and potentially unwinnable conflict with other branches. Fourth, the Article explores the benefits of that choice to a handful of detainees by demonstrating how the choice has allowed the courts to intervene in case-specific ways and, in so doing, to secure the release of a few detainees. Finally, the Article reveals the costs of that choice by showing how uncertainty has repeatedly traveled up and down the judicial hierarchy, delaying resolution of central issues that, indeed, remain unsettled today, all the while potentially endangering the judiciary’s institutional standing in war-time. Throughout, the Article argues that courts have refused to define time or space as limiting factors in the war against terrorism, instead focusing on the means employed. Emphasizing that distinctly difficult defining factor has made the courts’ task easier, enabling them to issue narrow rulings through reinterpretable opinions. Institutional reasons explain this judicial approach: in particular, the courts have sought to avoid clear intrusion into the sphere of political questions as well as to evade clear and potentially unenforceable conflict with the political branches. While the benefits of this approach have included particularized judicial intervention, the costs have loomed far larger, including persistent uncertainty and potential institutional diminution for the judiciary.
Keywords: Guantanamo, Terrorism, National Security Law
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