nationalsecuritylaw forthcoming scholarship: Chesney on the Individual Scope of Detention Authority in the Habeas Caselaw

* Forthcoming Scholarship

With apologies for the shameless self-promotion. Note that this is a draft, and comments/criticisms are welcome.

Who May Be Held? Military Detention Through the Habeas Lens

Robert Chesney (University of Texas School of Law)

52 Boston College Law Review (forthcoming 2011)

We lack consensus regarding who lawfully may be held in military custody in the contexts that matter most to U.S. national security today—i.e., counterterrorism and counterinsurgency. More to the point, federal judges lack consensus on this question. They have grappled with it periodically since 2002, and for the past three years have dealt with it continually in connection with the flood of habeas corpus litigation arising out of Guantanamo in the aftermath of the Supreme Court‘s 2008 decision in Boumediene v. Bush. Unfortunately, the resulting detention jurisprudence is shot through with disagreement on points large and small, leaving the precise boundaries of the government‘s detention authority unclear.

Part I opens with an abstract typology of criteria and constraints that might be used to define a detention standard at the individual level. Part II then provides further context with a thumbnail sketch of two overarching disagreements that greatly complicate the detention debate: we do not agree as to which bodies of law govern this question, nor do we agree as to what each particular body of law actually has to say, if anything, regarding individualized detention criteria even if that body is applicable. Part III follows with a survey of about two dozen habeas decisions between 2002 and 2010 in which courts grapple with the individualized-scope issue, using the typology from Part I as a device to facilitate comparison of the decisions.

With respect to affirmative predicates for detention, the survey concludes that something close to consensus has emerged regarding the use of group membership as a sufficient condition for detention, but that there may yet be considerable disagreement as to what counts as membership in this context. The survey also notes that the jury remains out with respect to whether non-member support for certain groups may also function as a sufficient condition for detention. With respect to variables that can function as constraints on detention authority, the survey shows that the courts have developed consensus against employing certain constraints (such as forbidding the use of detention as to citizens, or in circumstances where the government might have a criminal prosecution alternative). On the other hand, the question of geographic constraints on the scope of detention authority remains unsettled.

Part IV considers the ramifications of this descriptive account. I open by arguing that the lingering uncertainty matters a great deal both in terms of the remaining Guantanamo cases and in terms of other military activities that take place in the shadow of the habeas caselaw. I then consider the arguments for and against legislation to reduce the uncertainty, finding that the case for legislation is difficult but ultimately persuasive in the abstract (note that this paper is not a pitch for adopting some particular legislative proposal). Finally, I explain that the detention litigation illustrates three larger phenomena: (i) the dynamic relationship between law and strategic context; (ii) the increasing significance of domestic courts for purposes of developing international humanitarian law, and (iii) the increasing extent to which domestic law challenges both international humanitarian law and international human rights law for primacy when it comes to the legal regulation of national security-related activities.

By Robert M. Chesney

Robert M. Chesney is Charles I. Francis Professor in Law at UT-Austin School of Law. Chesney is a national security law specialist, with a particular interest in problems associated with terrorism. Professor Chesney recently served in the Justice Department in connection with the Detainee Policy Task Force created by Executive Order 13493. He is a member of the Advisory Committee of the American Bar Association's Standing Committee on Law and National Security, a senior editor for the Journal of National Security Law & Policy, an associate member of the Intelligence Science Board, a non-resident senior fellow of the Brookings Institution, a term member of the Council on Foreign Relations, and a member of the American Law Institute. Professor Chesney has published extensively on topics ranging from detention and prosecution in the counterterrorism context to the states secrets privilege. He served previously as chair of the Section on National Security Law of the Association of American Law Schools and as editor of the National Security Law Report (published by the American Bar Association's Standing Committee on Law and National Security). His upcoming projects include two books under contract with Oxford University Press, one concerning the evolution of detention law and policy and the other examining the judicial role in national security affairs.

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