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Sherman on Obama's Detention Policies

By Lawrence Solum

Edward F. Sherman (Tulane University Law School) has posted Obama Positions in the Aftermath of Supreme Court?s Rejection of Bush Detention Policies at Guantanamo (Military Law and the Law of War Review, Forthcoming) on SSRN. Here is the abstract:

The four Supreme Court cases culminating in the 2008 decision in Boumediene v. Bush are a watershed in American jurisprudence as to the separation of powers and vitality of the writ of habeas corpus. The context was the status of persons captured primarily in the US invasions of Afghanistan and Iraq and held at Guantanamo Bay, Cuba. Guantanamo was chosen by the Bush administration in the belief that the writ of habeas corpus could not reach outside the United States. The administration further maintained that the Executive had plenary power over the conduct of war, including capture and treatment of those whom it considered to be ?enemy combatants.?

The Supreme Court decisions reflected caution in the exercise of judicial review, but proceeded, in decision after decision, to limit or reject the administration?s positions. The government?s sovereignty-based test for habeas corpus was replaced by a pragmatic case-by-case approach. Further, the Court looked to a full range of sources for the standards to be applied by a court on habeas corpus, recognizing the references in American law to the Geneva Conventions and international law. Thus the Boumediene line of cases strengthened the legal basis for limits on the power of the American government to detain alleged enemy combatants, expanded the availability of the writ of habeas corpus to challenge detention, and affirmed the applicability of the international law of armed conflict.

There are still many unanswered questions. The application of habeas corpus to detainees held indefinitely who are legal residents of the U.S., held at Guantanamo, or held outside the U.S. are pending in the courts and raise significant issues of constitutional and international law. The decision of the Obama administration to continue a number of the measures of the Bush administration, including military commissions, indefinite detention, and secret prisons abroad, raise, despite increased procedural safeguards, the same kind of legal and constitutional objections that the Boumediene cases asserted against Bush policies. Finally, the Obama administration?s struggle to close Guantanamo, with its attendant problems of release of detainees into the U.S., trial of certain detainees in civilian courts, and trial of others before military commissions, pose difficult political and legal issues that will have to be resolved.

Full post as published by Legal Theory Blog on December 12, 2009 (boomark / email).