The decade since 9/11 has seen three phases in the government’s approach to the legal aspects of detainee policy in the “war on terrorism.” First, the Bush administration attempted to create a “law-free zone” in which it could deal with suspected terrorists free of legal restraint or interference by the other branches of government. After every rebuff by the Supreme Court the Administration responded by seeking the “least law alternative” and to that end invented new forms of adjudication: military commissions as substitutes for criminal trials, summary military tribunals to authorize indefinite detention without charge, and short-cut alternatives to traditional habeas procedures.
In the second phase, the Obama administration made significant progress toward its stated goal of returning to the rule of law in the national security arena—in particular, by announcing the closure of Guantanamo, the end of the military commission system, and a commitment to using the federal courts to prosecute terrorists.
The third phase began roughly with the return of the House of Representatives to Republican control in the 2010 elections. Congress employed its appropriations power to limit and then to foreclose the President’s ability to transfer detainees from Guantánamo, thus making it impossible to close the controversial detention center or to prosecute detainees held there in federal court, and forcing military commissions to resume. Thus, a decade that began with the executive branch’s assertion of sole and unconstrained power ended, ironically, with Congress asserting its power to countermand the executive branch’s decision to change its policies.
During the same period, the D.C. Circuit issued a series of decisions that effectively reversed the Supreme Court’s habeas decisions of 2004 and 2008. The Supreme Court’s failure to review these decisions has left detainees with essentially no meaningful opportunity to win release.
This article concludes by reflecting on these developments, the Obama administration’s often surprisingly effective responses, and where detainee policy is likely to go next.