Old Wineskins - Bitter Wine: The Inappropriate Use of the Balancing Metaphor in the Hamdi and Al-Bihani Cases

Abstract

The Article explores the use of the balancing metaphor/test by Justice O' Connor in the Hamdi case, and posits that the invocation of this metaphor had the effect of altering habeas procedure for Guantanamo detainees. The Article explores the origins of balance in the law, and canvasses how our cognitive processes respond to metaphor. I suggest that the powerful imagery of balance makes any analysis supported by the balancing metaphor more persuasive. I further suggest that the use of the balancing metaphor is particularly inappropriate in the context of habeas corpus, because the Constitution and framers envisioned a process to be followed by the courts in those proceedings. Using balancing as a methodology alters the procedural requirements of habeas.

Keywords: Habeas Corpus, Guantanamo, Metaphor, Hamdi, Al-Bihani, Balancing Test