A Foucauldian Call for the Archaeological Excavation of Discourse in the Post-Boumediene Habeas Litigation

Abstract

“On September 11, 2001 . . . ” When a sentence or a story begins with this familiar phrase, its boundaries and its ultimate conclusion are already clear. In the same way that “Once upon a time” immediately embeds the reader or listener in a world of fantasy and possibility, this opening phrase embeds her in a narrative and discourse of national security and terrorism that has emerged from that horrific day. This Note explores the impact that this discourse has had within the judicial branch. Using the terminology outlined by Michel Foucault in his Archaeology of Knowledge, this Note describes a troubling judicial perspective in the current Guantanamo habeas litigation and offers a solution. This Note argues, then, that the discursive text - the narrative, institutional practices, and rhetoric - of 9/11 has formed what Foucault calls a “discursive formation,” a unified system of relationships, authority, and exclusion. This post-9/11 discursive formation has actively and inconspicuously constructed a constrained judicial role in the ongoing Guantanamo habeas litigation.

This Note begins in Part II by introducing the post-9/11 judicial discourse and arguing that it has formed what Foucault would call a discursive formation. Part III describes the judicial discourse over the detention of enemy combatants within the habeas litigation that the Supreme Court’s decision in Boumediene v. Bush opened up. These habeas proceedings are especially instructive as to the judicial role because they represent the historical means by which the judicial branch has balanced and checked executive power. By contrasting the approaches to defining “enemy combatant” taken by the Fourth Circuit and the D.C. district and circuit courts, this Part demonstrates the power of discourse to constrain the judicial role.

Part IV offers further explication of Foucault’s insights into the operation of discursive formations and applies them to this habeas litigation. This Part explores each of the three “spaces” in Foucault identified by philosopher Giles Deleuze - the collateral space, correlative space, and complementary space - in order to demonstrate the effects of the post-9/11 discursive formation on the judicial province.

This Note concludes by advocating that the judiciary, in determining the extent of the President’s detention power, recognize Foucault’s insight and conduct an archaeological excavation of the post-9/11 discourse. This endeavor consists first in excavating its presupposed unities, embodied in énoncés. After doing so, the judiciary must then examine the remnants and make “controlled decisions” that construct basic principles. These principles will first give notice to the political branches about the principles that should guide their decisions in the aftermath of 9/11. Perhaps more importantly, though, by conducting such an archaeological excavation, judges will make clear the “plinths,” or foundations, upon which their decisions rely, promoting dynamic dialogue and criticism about these issues that will sharpen and define the disagreements.

Without this archaeology, the text - the discursive formation - is constructing a judicial province that proscribes the drafting of definitions. To clarify this archaeological excavation, I contrast the two opinions in Boumediene by Justices Kennedy and Scalia. While Justice Scalia relied on presupposed unities and refused to excavate the énoncés on which his reasoning relied, Justice Kennedy understood Foucault’s insight into the necessity for excavation and archaeology. Justice Kennedy’s archaeological excavation of sovereignty and the extraterritorial reach of the writ of habeas corpus in Boumediene represents the same approach to the judicial role that Judge Wilkinson displayed in Al-Marri when determining the definition of “enemy combatants” and the scope of the President’s authority to detain. Although the district court of D.C. expressly rejected Judge Wilkinson’s judicial approach and the D.C. Circuit implicitly declined to adopt it, this Note argues that these judges only did so because they failed to realize the constructive power of discourse. Foucault’s insights make the power of this post-9/11 discourse apparent and demonstrate the need for the archaeological excavation for which this Note advocates.

Keywords: Boumediene, Habeas, War on Terror, Enemy Combatants, Foucault, Discourse, Terrorism, National Security, Hamdi, Al-Bihani, Wilkinson, Kennedy, Guantanamo