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Colby Townsend Memorial Prize Paper (H. Gerken, P. Gewirtz, D. Kysar) (best paper by a second year student)


A preventive detention court sits today in Washington, D.C. It has jurisdiction over more than 200 people. In each case before the court, the government claims that the petitioner can be detained by the executive without trial because he is part of a terrorist organization and would pose a threat to the United States if released. The petitioner, who is hundreds of miles away but may participate via telephone or video access, denies the claim and on occasion presents countervailing evidence of his own. Hearsay evidence is admissible, and the standard of proof is preponderance of the evidence. Often the government’s case is based largely on the petitioner’s own statements. Hearings rarely last more than a day or two. If the petitioner loses, and loses on appeal, he may not ever have a right to return to a court for the rest of his life.

Several years ago, some began calling for Congress to create a new “national security court” that would perform this function or something like it. But Congress has done no such thing. Instead, this system is the result of a Supreme Court victory on behalf of Guantánamo Bay detainees. In Boumediene v. Bush —after several years of habeas litigation from multiple detainees—the Court settled a core issue: people being held in Guantánamo have a constitutional right to bring habeas petitions in Article III courts. Dozens of petitions that had been filed were allowed to proceed; for the sake of organization and some measure of uniformity, they were channeled through the United States District Court for the District of Columbia. The D.C. judges have been left to improvise; with only a vague balancing test envisioned by the Court in Hamdi v. Rumsfeld and an invitation to “innovat[e]” in Boumediene, they have come up with their own set of rules for the habeas proceedings. Gradually, they have been building through common law what looks substantially like a “national security court”: a specialized judicial body that decides on preventive detention through abbreviated hearings.

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