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For the seven years following the September 11 attacks, the American debate over the propriety of military detention of terrorist suspects focused on the question of whether federal judges could exercise habeas corpus jurisdiction over detainees at Guantánamo Bay, Cuba. The Supreme Court answered that question affirmatively in the summer of 2008, but in doing so, it declined to address a number of the critical questions that define the contours of any non-criminal detention system. Congress could have legislated with respect to these questions and sought to define the rules, but it has not done so to date. Many civil libertarians and human rights activists have praised Congress’s inactivity, while some other commentators have leveled sharp criticisms. Whatever its merits, however, it is critical to understand that congressional inaction does not mean that the Obama administration has abandoned the option of non-criminal detention of terrorist suspects, nor does it mean that there exists no process to define the rules governing both current detentions and, at a minimum, those prospective detentions that take place at the base. Rather, the decision means that for good or ill, these rules will be written by judges through the common-law process of litigating the habeas corpus cases of the roughly 170 detainees still held at Guantánamo. This state of affairs puts a premium on these cases not merely as a means of deciding the fate of the individuals in question but as a law-making exercise with broad implications for the future. The law established in these cases will in all likelihood govern not merely the Guantánamo detentions themselves but any other detentions around the world over which American courts might acquire habeas jurisdiction—although, as we discuss briefly below, the prospects for wider habeas jurisdiction are unclear. What’s more, to the extent that these cases establish substantive and procedural rules governing the application of law-of-war detention powers in general, they could end up impacting detentions far beyond those immediately supervised by the federal courts; indeed, they might even have an indirect but significant impact on superficially unrelated military activities, such as the planning of operations and decisions to target suspected enemy combatants with lethal force. In short, the legislature’s passivity to date combined with President Obama’s decision not to seek new law to address these questions have together delegated to the courts a remarkable task: defining the rules of military detention. Despite the scope of their mandate, the courts’ actual work product over the past few years has received relatively little attention. The district and appellate court judges have not been idle; far from it. To date, district judges have issued 38 merits opinions covering 59 different detainees, and the D.C. Circuit Court of Appeals has issued 11 decisions on appeal. As we shall explain, these numbers do not give an altogether accurate picture of the litigation’s complexity, but the press has duly noted each of these decisions and has kept a running scorecard of detainee wins versus government wins. Yet at the same time, it has paid almost no attention to the broader contours of the law of detention that is emerging from these decisions. Our purpose in this report is to describe in detail and analyze the courts’ work to date—and thus map the contours of the nascent law of non-criminal counterterrorism detention that is emerging from it. As we shall describe, the Supreme Court, in deciding that the federal courts have jurisdiction over habeas corpus cases from Guantánamo, gave only the barest sketch of what such proceedings should look like, leaving a raft of questions open for the district and appellate court judges: · Who bears the burden of proof in these cases, and what is that burden—which is to say, who has to prove what? · What are the boundaries of the President’s detention power—that is, assuming the government can prove that the detainee is who it claims him to be, what sort of person is it lawful to detain under the laws of war? · What sort of evidence can the government use? · And how should the courts handle hearsay and evidence that may have been given involuntarily? None of these questions, and many others besides, has clear answers emanating from either Congress or the Supreme Court. On all of them, the lower federal court judges are making the law. In January 2010, the Governance Studies department at Brookings released a paper entitled “The Emerging Law of Detention: The Guantánamo Habeas Cases as Lawmaking.” In the paper, two of the present authors sought to describe the enormous diversity of opinion among the lower court judges to whom the inactivity of the Supreme Court, Congress, and the Executive Branch had effectively delegated the task of writing the law of detention. In the year that has followed, a great deal has changed. A number of appellate decisions have given the lower court considerable guidance on questions that were seriously contested when we published the original paper. Some of the parameters of the law of detention that were altogether unsettled then have come into sharper focus as a result. And lower court judges have, to some degree, fallen into line. On other issues, by contrast, the law remains more or less as it was then, uncertain and subject to greatly divergent approaches by district judges with profoundly differing instincts. While in some areas, in other words, the judges have developed relatively clear rules, in others they continue to disagree. And, as then, the D.C. Circuit may not prove to be the final word. Its decisions may be merely interim steps on the way to Supreme Court consideration—meaning that the entire law of detention as it stands now could prove to be a kind of draft, a draft whose parameters remain sharply disputed and that might be torn up at any time. The original paper is, in many respects, thus an out-of-date account of this draft—no longer an accurate guide to what is contested and what is at least tentatively resolved. Rather than simply produce a new edition of the paper, one that would just as quickly become obsolete, we decided to adapt it into a more dynamic document—one that we can update in real time as the law of detention emerges further and to which we can add additional sections covering issues we ignored the first time around. Welcome to the Emerging Law of Detention, Version 2.0. The sections of this report are adapted from those of the original paper, on which they significantly expand, and we expect to add additional sections as the case law develops. In some areas, the development has been, and will continue to be, relatively rapid. In other areas, things change slowly. The goal is to provide, at all times, a reasonably up-to-date account of how the law of detention is changing and where it is heading on each of the bewildering array of questions on which individual judges and combinations of appellate judges are picking and choosing among the possible directions of the law. Two of the present authors have argued for detention legislation in the past and continue to believe congressional involvement is crucial to the healthy development of America’s detention system. We have also made no secret of having significant concerns about the habeas process as a lawmaking device, though it is essential to emphasize that we are not criticizing the judges in question, who have no choice but to decide the case that have come before them with whatever guidance they have been given. All that said, our purpose in this report is not to engage the debate over whether the United States needs detention legislation. It is, rather, to describe the developing system under the rule-making mechanism currently in place. We hope our description provides insights into the emerging law of detention for those who oppose, as well as for those who agree with, our views of contested current policy questions. This report proceeds in several parts. In the first section, we briefly describe the legal background that gave rise to these habeas corpus cases: the Supreme Court’s decisions recognizing federal-court jurisdiction over Guantánamo and addressing to a limited extent the contours of a legal process for detainees adequate to satisfy constitutional concerns. We highlight in particular the extent to which the court left the key questions open, a move that in the absence of further congressional action effectively delegated the writing of the rules to the judiciary. In the sections that follow, we examine the law as it is developing with respect to several of the most important questions concerning the governance of non-criminal, law-of-war-based detentions. In particular, we look at the judges’ approaches to the following questions: · the burden of proof; · the substantive scope of the government’s detention power; · the question of whether a detainee’s relationship with an enemy organization, once established, is permanent or whether it can be vitiated by time or events; · whether the government is entitled to presumptions in favor of either the accuracy or authenticity of its evidence; · the use of hearsay evidence; · the use of evidence alleged to result from coercion; and · the government’s use of a “mosaic theory” of evidentiary interpretation. We may add more sections, on issues like discovery, in the coming months and will endeavor to keep the existing sections current as new cases develop.