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Article

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Detention, the War on Terror, and the Federal Courts, 110 Columbia Law Review 579 (2010)

Abstract

Between 2004 and 2009, the United States Supreme Court relied numerous times on habeas corpus to protect the rights of citizens and of aliens detained after 9/11. Various claims could be marshaled to bracket the 9/11 decisions—as “war” cases; “Guantanamo” cases; “torture” cases; aberrational responses to documented procedural unfairness; unusual instances of federal pretrial detention; and either as extraordinary judicial rejections of challenges to the Court’s authority or as disappointingly narrow procedural remedies licensing forms of preventive detention. Further, one could argue that the specter of terrorism raises normative questions distinct from those related to confinement for other reasons.

But neither the problems nor the law produced through 9/11 detention are exotic. Rather, they are continuous with judicial responses to decisions by governments trying to maintain peace and security and, hence, incapacitating some individuals feared likely to inflict grave harm. Officials deal with uncertainty about which persons are threatening in the contexts of 9/11, of ordinary criminality, and of border regulation. In response, more than two million persons are detained in the United States, and some 25,000 segregated in solitary confinement in “supermax” facilities. Courts in turn have, over the last several decades, addressed or demurred on claims about the illegality of both the length and conditions of confinement, and Congress has repeatedly sought to structure or limit routes that various kinds of detainees may take to court.

Therefore, the 9/11 decisions are exemplary of what Henry Monaghan termed the “timeless” questions within the federal courts canon about the role of courts in this constitutional order. One sees, repeatedly, the many effects of “foreign” law on U.S. precepts, as well as the distinctive contributions made by courts, obliged to function independently, to treat all persons as equally entitled to dignity, and to work in public. But the limited role for courts is also vivid; even as adjudication can frame some parameters of confinement, the protection of human dignity depends on a diverse set of officials interacting at all levels and in all sectors of government.

Date of Authorship for this Version

2010

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