Reconceptualizing Federal Courts in the War on Terror

45 Pages Posted: 6 Sep 2012

Date Written: September 3, 2012


Since 9/11, the United States has created a framework that allows for indefinite detention under the law of war and prosecution in military commissions as alternatives to charging terrorism suspects in federal court. These alternatives have affected how federal courts are represented and perceived. Proponents of using federal courts, for example, increasingly emphasize their toughness as a way of demonstrating their continued viability as a forum for terrorism prosecutions. At the same time, federal courts are criticized for risking disclosure of classified or other sensitive information, infringing on executive prerogatives, and undermining military and intelligence operations. These criticisms have not only helped legitimize military alternatives to federal criminal prosecution for the long-term incapacitation of terrorism suspects; they have also supplied justifications for denying civil litigants - particularly, victims of torture, arbitrary detention, and other forms of mistreatment - a judicial remedy and for dismissing legal challenges to controversial government programs under various justiciability doctrines.

This Article explores how Guantánamo and the war on terror more generally have altered the perception and operation of federal courts. Part I describes the growth after 9/11 of a new type of military detention system that provides an alternative to Article III-court prosecutions of terrorism suspects. Part II examines how this parallel military detention system has affected the way federal courts are defined and represented as a forum for terrorism prosecutions. Part III looks at federal courts from the perspective of their role in providing a forum for plaintiffs seeking redress for torture, unlawful detention, and related abuses. It describes how many of the same reasons cited in opposition of federal criminal prosecution of terrorism suspects are invoked - often by federal judges themselves - to prevent federal court adjudication of civil damages litigation arising out of government misconduct during counterterrorism operations. Part IV examines federal courts from another vantage point, describing their engagement with the new, post-9/11 military detention system through the exercise of habeas corpus jurisdiction. Here, federal courts have performed two, inter-related functions: first, articulating general rules and principles to govern military detention and trial, and second, acting as quasi national security courts by reviewing the validity of individual prisoners’ military confinement. While federal courts have imposed some constraints on the government’s ability to hold terrorism suspects outside the criminal justice system, they have largely accommodated the new forms of military detention that emerged after 9/11 under the rubric of the war on terrorism and have shown considerable deference to the government’s allegations in individual cases.

Keywords: Constitution, Federal Courts, Military Commissions, Detention, Habeas Corpus, Torture, Guantanamo

Suggested Citation

Hafetz, Jonathan, Reconceptualizing Federal Courts in the War on Terror (September 3, 2012). St. Louis University Law Journal, Vol. 56, 2012, Seton Hall Public Law Research Paper No. 2141035, Available at SSRN: or

Jonathan Hafetz (Contact Author)

Seton Hall Law School ( email )

One Newark Center
Newark, NJ 07102-5210
United States

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