Meaningful Review and Process Due: How Guantanamo Detention Is Changing the Battlefield

Abstract

This Article examines the failure of the Executive Branch to defend successfully its position of holding Guantanamo Bay (GTMO) detainees indefinitely without hearings in civilian courts, and the resulting operational and policy consequences. After exploring why the United States applied the legal paradigms associated with armed conflict, rather than criminal law, after the September 11, 2001 terrorist attacks, the Article traces the precedents of military detention law and habeas corpus jurisprudence upon which President Bush relied when deciding to hold the terror suspects without habeas review. It then summarizes how the legal landscape changed after 9/11, eventually allowing GTMO detainees to challenge the bases of their detention in federal court, and assesses how their habeas litigation has had consequences on military tactics and resource allocation on the battlefield. It also analyzes some of the efforts of the international legal community, arguably motivated by U.S. detention policies and practices, to amend some principles of international humanitarian law related to detention operations.

This article is the first in a series. It was followed by GQ: The Guantanamo Quagmire, Stanford Law & Policy Review (2016), http://ssrn.com/abstract=2792512.

Keywords: National Security, terrorism, detention, detainee, detainees, Guantanamo, Guantanamo Bay, habeas, counterterrorism, military commissions, law of war, law of armed conflict, criminal law, due process