Of Loaded Weapons and the AUMF: The Case for a Provisional Approach to the Guantanamo Habeas Suits

Abstract

This Article argues the Guantanamo habeas rulings that have followed the Supreme Court’s decision in Boumediene v. Bush should be afforded only the most provisional status as legal precedent. The recent case law hinges on an interpretation of the AUMF that the word “force” includes the power to detain, but I argue that this interpretation has been a product of judicial crisis management born of necessity. Judges have been filling a policy void from both political branches on preventive detention. They have improvised a system for separating out those who truly ought to be released from those who might pose a threat, but, absent any interventions by Congress, the rulings so far should serve as no more than provisional means for dealing with this particular group of detainees. A provisional approach to the rulings’ interpretation of the AUMF is appropriate because Congress did not discuss any issues related to detention at the time of the AUMF’s passage and never has voted upon the matter since; higher courts have left trial courts with almost no guidance on the matter; and the executive branch under the Obama administration has shown no broader desire to make preventive detention the law of the land.My argument proceeds in five Parts. Part I briefly describes the substance of the habeas rulings, their broad areas of consensus, and the disconnect that this emerging consensus has produced when compared to public discourse over detention in Guantanamo. Part II discusses the “democracy gap” in our current detention policy, arguing that the AUMF was never understood as an authorization for long-term detention at the time of its passage and was never discussed as such. It also argues that subsequent legislation, including the 2006 and 2009 Military Commissions Acts and the 2005 Detainee Treatment Act, should not be seen as congressional ratifications of detention policy. Part III explores the gaps that the dynamic between the Supreme Court and Congress has produced, the Court having insisted on some level of legal process but refusing to set any concrete guidelines, and Congress failing to pass any serious policy resolutions. Part IV turns to examine the executive branch, arguing that the Obama administration has delegated detention law to the courts as its least bad option for “unwinding” the situation it inherited. It examines the administration’s legal position with regard to detention and argues that this position, while similar on the surface to that of the Bush administration, should also be viewed as provisional and backward looking. Part V stakes out the case for a provisional approach and describes the contours that such an approach would take, including how and to whom this line of cases should be limited.