Document Type

Working Paper

Publication Date

2008

Center/Program

Roger Hertog Program on Law and National Security

Abstract

Especially after the recent Supreme Court decision in Boumediene v. Bush, holding that constitutional habeas corpus rights apply to detainees at Guantanamo, a debate burns over whether Congress should enact new laws authorizing preventive "administrative detention" of suspected terrorists outside the criminal justice system, perhaps overseen by a new "National Security Court." This Article argues that both sides of this debate analyze the problem and propose solutions backwards: they begin by focusing on procedural issues and institutional design (e.g. what kind of judge will decide cases; how will the suspect defend himself; etc) rather than first deciding (1) what is the strategic purpose of proposed new law, and (2) whom does it therefore aim to detain. It argues that only after answering the questions "why detain?" and "detain whom?" can the procedural and institutional details be drawn up and proposals weighed intelligently. It then recommends some answers to those questions and proposes appropriate, corresponding procedural and institutional architecture.

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